By the Court —
Berry, J.— With regard to the objection that the order to show cause improperly provided for notice of hearing of not less than six days, it is only necessary for us to say that Sec. 17, page 627, Pub. Stat., so far as it requires eight days’ notice of a motion, does,, not have reference to orders to show cause. That section authorizes the Judge to prescribe a shorter time by order to show cause, and in the absence of anything to the contrary, it is to be presumed that the order is made in a proper case and in the exercise of suitable discretion. See Marty vs. Ahl, 5 Minn., 33.
It appears that a motion had been made on the. 6th day of December, to remove the default of the garnishee and permit him to disclose, which was denied; and it is insisted that the motion which was to be heard uuder the order to show cause was for the same purpose as the prior motion and based upon the same state of facts, and so could not properly be made without leave of renewal first obtained from the Court. This course of practice is laid down in Irvine vs. Meyers & Co., 6 Minn., 558. Rule 15, (Dist. Ct. Rules,) adopted subsequently to that decision, was referred to upon the argument on this point, but we think it has no application here. But even under the rule laid down in Irvine vs. Meyers & Co., we have no hesitation.in holding that the order to show cause was in itself sufficient leave to renew the motion for the removal of the default. The only object in requiring leave to *167be given is that the Judge as well as the adverse party may not be harassed by repeated applications of the same nature for the same purpose and in the same action, unless for some .satisfactory reason permission for a new hearing is granted. It is difficult to perceive why this object may not be attained as effectually by an order to show cause, as by formal and express leave. The granting of the order implies leave. The parties-being then properly brought before the Judge on the 20th day of December, the next question which presents itself is whether the action of the Judge is rcviewable. It is true as is claimed by the respondent that the application was addressed in some degree at any rate to judicial discretion, the exercise of which will not be questioned unless abu.se appears. There was some conflict in the affidavits in regard to the facts under which the default occurred, and in the use of proper discretion in determining the weight of evidence, we think the Judge might be warranted in removing the default, and so far we perceive no abuse of discretion. But Sec. 13, page 249, hems 1860, provides that simultaneously with the removal of the default, the Court is to permit the garnishee “to appear and answer on such terms as may be just.”
It was insisted at the hearing below that if tho default were removed, a time should be fixed for disclosure. This we think should have been dene. If it be not done the statute makes no provision for bringing the garnishee before the Court again to make his disclosure. And although it is possible that an ingenious practitioner might discover some way to accomplish this object, inasmuch as the matter was pressed upon the attention of the Court below at the time of the hearing, it was but just in fixing the terms upon which the default was to be removed, that a day and place should be set for the garnishee to appear and disclose, and that the plaintiff should not be put to the trouble of making another and special application to the Court for that purpose, even if that would be allowable or effectual. We do riot think the prepayment of fees to a garnishee is essential to bind him to appear. The statute does not expressly require pre-payment, and by Secs. 27 and 28, haws 1860, page 247, it seems that whether he is tobe *168allowed fees or not is contingent, and that if he is adjudged chargeable he is to deduct them from the amount with which he is charged, and to be held accountable for the balance only. These sections are clearly inconsistent with the requirement of pre-payment. Some other points were raised on the argument which we deem unimportant.
We direct the order of the Court below to be modified, by fixing therein a time and place for the garnishee to appear and disclose, and remand this action for that purpose and for further proceedings thereupon. /