Park, Grant, & Morris v. Nordale

Robinson, J.

(dissenting). This is an action to recover $700 for goods sold and delivered. Counsel for plaintiff made an affidavit which avers a belief that the defendant has not property within this state sufficient to satisfy the demand, and caused a garnishee summons -to be issued and served thereby attaching over $1,000 due from George Pirie Company to the defendant. Then defendant made an affidavit showing clearly that within the city of Fargo he owns certain described property worth $18,000 over and above his exemption. The affidavit was not in any manner contradicted, and on an order to show cause the court made an order that the garnishee process be set aside, annulled and dismissed, and the garnishee released. The court justly gave as a reason that no debtor should be subjected to embarrassment of garnishee process when it fully and fairly appears by proper affidavits, not contradicted, that the debtor has abundant property subject to execution to meet any and all demands against him.

It is true, the statute does provide for the issuing of a garnishee summons on such an affidavit as was made in this case, but the statute does contemplate that such an affidavit shall not be made recklessly, and that a party swearing to a mere belief concerning a fact should first make reasonable search and inquiry in regard to the fact so as to have some just and reasonable ground on which to base his belief, but in any event, when a party obtains process of law — process of attachment or garnishment — by swearing to a belief which appears to be groundless and untrue, it is for him to tender a proper apology and to release the process. In such a case the duty of an attorney is to promptly undo the wrong, and not to persist in trying to sustain it.

In this case it is manifest that there was no ground for the garnishee and no ground for appealing to this court. We will not argue or cite authorities to show that it is the right and the duty of all courts to protect themselves and all parties to an action in their court from any abusive legal process. To sustain the garnishment would be a reproach to the law and the court.

The order should be affirmed with costs.