(dissenting).
I dissent. I cannot agree that the garnishee must forfeit $350 which he has never owed to defendant, to plaintiff or to anyone else. I disagree with the opinion of my colleagues on both points decided and I here set out my views separately on those points.
I. The Question of Jurisdiction.
I find nothing in the case which justifies this court in turning advocate and seizing upon a technical point which was not even suggested by counsel, when its effect is to help perpetuate an injustice.
The majority opinion holds that the garnishee Ray has no standing here and no right even to be heard, because he appealed from the order overruling his motion to vacate the judgment, instead of appealing from the judgment itself. Thus his hope for justice is impaled on a stake of artificiality which has no rightful place in modern jurisprudence.
Great strides have been made in the past few years in the simplification of court procedure. By legislative action, the rule making power, and the power of judicial interpretation, technical distinctions have been abolished, and the administration of justice placed upon a reasonable businesslike basis. This should mean that the day of the “special pleader” is gone, and that justice is not alone for him who manages to fit the right words into the right places. More important, it should mean that the right of appeal must be unfettered by ruse or artifice. This has been emphasized by the fact that Congress so recently restored the right of appeal to Municipal, Police and Juvenile Court litigants after they had been without it for more than twenty years.1 *697It was this legislative action, incidentally, which brought this court into being.
Surely in this emancipated period of judicial reform there is no justification for the kind of judge-made pitfall which the majority opinion creates. For that opinion says in effect that one seeking a review of the refusal of a trial judge to open a judgment and give him a trial on the merits, is lost unless he is careful to point out that he appeals not from the refusal to vacate but from the judgment itself. Is that not a legal anachronism? Does that distinction not belong in the limbo of the forgotten, along with the “common counts", the "money counts”, the “negative-pregnant”, the “absque hoc” and the great host of relics of the legalistic past?
What is the practical difference between noting an appeal from a default judgment and noting it from the refusal to vacate the judgment? Are not the motion to vacate and the overruling thereof bound up with the judgment itself? Does noting the appeal from the refusal to vacate give-the garnishee any unfair advantage ? Does any injury result to the plaintiff? Or any unfairness to the trial judge? If a garnishee or defendant appealed from a default judgment without first filing a motion to vacate would he not be summarily reminded that he had failed to exhaust his remedies below? Whatever words were put into the notice of appeal is it not perfectly plain that this garnishee, finding that a judgment had been entered against him for $350 sought to have it vacated, was refused by the trial judge and comes to us seeking a review of that refusal?
We must not forget that in the Municipal Court many defendants and almost all garnishees appear without counsel. But if the rule announced by the majority is to be the law, only those with deft and skillful counsel can hope to find their way into this court. That is hardly in keeping with either the letter or the spirit of the Act of April 1, 1942,2 reorganizing the Municipal Court, creating this court and requiring us to formulate rules “to provide for the efficient administration of justice, and the same shall conform as nearly as may be practicable to the forms, practice, and procedure now obtaining under the Federal Rules of Civil Procedure”. Among said rules is the requirement, Rule 8(f), 28 U.S.C.A. following section 723c that “all ■pleadings shall be so construed as to do substantial justice”. Looking to this language it seems to me our plain duty to so construe the notice of appeal as to consider the appeal on its merits; and not close the door of this court to this garnishee and all others in the same predicament, not because counsel urges it or because public policy demands it but because the court itself decides to raise the so-called jurisdictional question.
All the local cases cited by the majority were decided before the adoption of the new federal rules, with the exception of the following:
Consolidated Radio Artists, Inc., v. Washington Section, etc., 1939, 70 App.D.C. 262, 105 F.2d 785. In that case as here the appeal was noted from the overruling of a motion to vacate a default judgment. The United States Court of Appeals nevertheless took the case, heard it on the merits, reversed and remanded it with such directions as were calculated to prevent injustice and bring about a hearing on the merits.
In Wise v. Herzog, 1940, 72 App.D.C. 335, 114 F.2d 486, the appeal was from a refusal to open a default in a small claims case, based upon registered mail service. Appellant was not entitled to an appeal of right. Nevertheless the court granted the appeal, considered the merits and wrote an exhaustive and enlightening decision charting the course for the Municipal Court in such cases and preventing future misunderstanding or confusion.
In Encyclopaedia Britannica, Inc., v. Shannon, U.S.App.D.C., January 25, 1943, 133 F.2d 397, the same court exercised its power not to deny an appeal but to grant it and to consider the merits. A reversal resulted.
True it is that in the three cases just mentioned the judgments were sought to be vacated on the ground of improper service. But I can see no practical difference between those cases and this, if notices of appeal, like other pleadings, are to be construed in such a way as to do substantial justice rather than impede it.
II. The Discretion of the Trial Court.
A garnishee is brought into a law case under circumstances somewhat similar to those which attend an ordinary witness. In reality, however, he becomes a party to *698the case, since service of the writ confers personal jurisdiction3 and binds the property or credits of the defendant (if he has any in his possession) in his hands and places them in custodia legis.4
Moreover a garnishee is almost always an innocent, disinterested third person who is made an unwilling party to a controversy, and subjected to annoyance and expense. He has no prospect of personal benefit, but is directly subject to injury and penalty. For that reason an even more liberal rule should be applied in considering applications by garnishees for relief from judgments of recovery than is applied to ordinary defendants.5
I am satisfied the trial court in the exercise of its discretion should have granted the motion to vacate.
The “discretion” which the law authorizes is not a mental or personal one, but to be exercised with careful regard to what is right and equitable under the circumstances and the law, and directed by reason and the conscience of the judge to a just result.6 It is subject to review “where the error in its exercise is plainly shown, and works material hardship and injustice”,7 or where the reviewing court is satisfied that there has been an erroneous conclusion, or against reasonable, probable and actual deductions to be drawn from the facts.8 That is so because “it is the policy of the law to bring about a trial on the merits whenever possible, so that any doubts which may exist should be resolved in favor of the application, to the end of securing a trial upon the merits”;9 for the judicial discretion should be exercised “in a manner to subserve and not to impede or defeat the ends of substantial justice”.10 These matters should be noted:
(1)The first garnishment was a nullity. It was issued and served improperly. The garnishee need not have answered it at all. But he did make full answer under oath stating that he not only owed defendant nothing but that defendant was indebted to him in the sum of $175. That answer, repeated in his answer to the third garnishment, stands uncontradicted in the record to this very moment. It is true that he filed his answer after the statutory ten day period; but it was still not too late, for plaintiff had taken no action in the meantime to enforce the default.11
(2) True, he ignored the second garnishment; but so did the plaintiff.
(3) On the heels of that came the third garnishment, accompanied on the very same day by a queer suit, unauthorized by statute and unknown to our practice, in which plaintiff claimed $79.80 directly of the garnishee for credits allegedly accumulated during the pendency of the second garnishment. That suit has never been tried and is still pending in the trial court.
(4) The original judgment against defendant Stotler was and still is under the cloud of direct attack by defendant’s motion to vacate which is still pending and undisposed of. There can be no question that the judgment against the garnishee depends upon the validity of the original judgment.12 Without such a valid original judgment a judgment of recovery may not even be entered.13 And if that judgment be vacated below, or on appeal here, the judgment of recovery would necessarily fall with it, leaving the garnishee in the curious and unenviable position of having paid $350 for which neither he nor anyone else is liable.
(5) Within a little over a month garnishee was confronted with three garnishments and one law suit. It is small wonder that in that confused situation he fell into default. In my view this alone entitled him to a holding that his neglect was excusable.
(6) I think it is plain that to impose a penalty of $350 with accumulated costs *699against this garnishee would be to inflict a penalty out of all proportion to the nature of his neglect. This is especially true when we remember that the trial judge had a much more humane alternative, namely, to vacate the judgment and impose reasonable terms upon the garnishee.14
(7) It should not be forgotten that plaintiff could have obviated all the confusion which followed by taking some or all of the steps outlined by our court of last resort in a recent case15 as follows: ■“As we view it, the statute contemplates (1) the garnishee answering written interrogatories, (2) oral examination of the garnishee, supplementing the answers to the interrogatories, (3) traverse by plaintiff of the garnishee’s answer, after the ■oral examination,16 and (4), the determination of the issue joined by traverse.”
(8) The majority opinion makes much of the fact that garnishee did not support his motion by affidavits. I suggest, however, that there is no statute or rule of court that requires such affidavits. Furthermore the trial court could have required, on plaintiff’s application or on its own motion, that the garnishee submit evidence either in the form of affidavits or by submitting himself in open court for examination. Nor is it too late for us to remedy that situation even now, as I point out below.
III. Our Alternative.
As above indicated, I feel that the judgment should be reversed on the merits. If that is not to be done I think the state of the record is such that we should at least do that which was done in 'Consolidated Radio Artists, Inc., v. Washington Section, etc., supra, so that we may be sure that the limit of our power has been exercised to prevent injustice. There, in a highly similar situation the U. S. Court of Appeals said: "We feel it our duty to remand the case to the trial court with instructions to reform its order so as to show whether the motion was heard entirely on affidavits and, if so, what affidavits were filed; and if it was heard partially on affidavits and partially on oral testimony or documents, how the latter were proved; and what facts were found by the court; with permission to the court, if in its opinion it will tend to clarify the facts and the right of the case, to grant a rehearing and permit the parties on such rehearing to introduce affidavits or oral testimony.” [70 App.D.C. 262, 105 F.2d 788.]
These are my views of the considerations which must be weighed and the disposition which should be made in situations of this kind. If I am wrong, there is little hope for defendants or garnishees who are unwary enough to find themselves in default, and not adroit enough to conform to every technical rule 'thrown in their path.
The former method was by application to the United States Court of Appeals. 41 Stat. 1312, ch. 125, § 12. Title 11, Sec. 723, of the (1940 Edition) Code.
Public Law 512 — 77th Congress., 56 Stat. 190, 196, § 9.
United States ex rel. Ordmann v. Cummings, 66 App.D.C. 107, 85 F.2d 273.
. International Finance Co. v. Jawish, 63 App.D.C. 262, 71 F.2d 985.
Evans v. Mohn, 55 Iowa 302, 7 N.W. 593; Montayne v. Husted, 3 Kulp, Pa., 325; Nicholson v. Fitzpatrick, 2 Phila., Pa., 205; Eirst State Bank of Kermit v. Krenelka, 23 N.D. 568, 137 N.W. 824; McConnell v. Margulies, 39 S.D. 563, 165 N.W. 990; Waples on Attachment, Vo. 2. 2d Ed. 501.
Pettegrew v. Pettegrew, 128 Neb. 783, 260 N.W. 287.
In re Mattullath, 38 App.D.C. 497.
McFarlan v. Fowler Bank City Trust Co., 214 Ind. 10, 12 N.E.2d 752.
Nicliolls v. Anders, 13 Cal.App.2d 440, 56 P.2d 1289, 1292.
Id.
Banville v. Sullivan, 11 App.D.C. 23.
Collifiower & Co. v. MeCallum-Sauber, 61 App.D.C. 390, 63 F.2d 366.
Id., and cases cited. See, also, 1940 Code, §§ 16-319 and 16-329.
French v. Hay, 22 Wall. 238, 22 L.Ed. 854; Gray v. Lawlor, 151 Cal. 352, 90 P. 691, 12 Ann.Cas. 990; Lilly-Brackett Co. v. Sonnemann, 157 Cal. 192, 106 P. 715, 21 Ann.Cas. 1279.
Young v. Nicholson, 70 App.D.C. 351, 107 E.2d 177,179.
Presumably plaintiff may skip the third, step, foregoing the right of oral examination, and filing his traverse to the answer, at the risk of being subjected to an award of attorney’s fee under Code (1940 Edition) § 16 — 329.