Opinion
April 7, 1925. Rehearing Denied December 17, 1925.
JUDGMENT: Equitable Relief — Erroneous Finding Against 1 Garnishee. Concede that a finding by the court that the garnishee was indebted to the defendant in attachment was erroneous, nevertheless such fact furnishes no basis for enjoining the enforcement of the judgment entered on such finding, when the court was proceeding under fully acquired jurisdiction.
GARNISHMENT: Notice — Insufficiency Cured by Appearance. The 2 appearance of a garnishee in response to a pleading controverting his answer renders the sufficiency of the notice of garnishment quite immaterial. Headnote 1: 15 C.J. p. 1142; 34 C.J. p. 451. Headnote 2: 28 C.J. p. 224.
Appeal from Marshall District Court. — B.F. CUMMINGS, Judge.
ACTION in equity, to enjoin the enforcement of a judgment. A demurrer to plaintiff's petition was sustained, and it appeals. — Affirmed.
C.H. Van Law and A.E. Maine, for appellant.
C.H.E. Boardman, for appellee.
This is an action in equity, to enjoin the enforcement of a judgment entered in the municipal court of the city of Marshalltown, against appellant, as garnishee, at the suit of the Iowa Adjustment Company v. Fred Mace, and transcripted to the district court of Marshall County.
The petition alleged that the judgment entered against appellant, as garnishee, by the municipal court is wholly void, because entered without jurisdiction of either the person or the subject-matter; that no notice was ever served 1. JUDGMENT: upon appellant; that it is a resident of equitable Washington County, Iowa; that the finding of the relief: court that appellant was indebted to the erroneous plaintiff in the attachment proceeding was finding erroneous; and that appellant was not, in fact, against in any respect indebted to it; and that the garnishee. finding and judgment of the court, based upon the alleged violation by appellant of the Bulk Sales Law, was without jurisdiction or authority. It prayed that appellee be restrained from proceeding in any way to enforce the payment of the judgment. Appellee filed a general equitable demurrer to the petition, and also demurred thereto upon the ground that the municipal court is a court of concurrent jurisdiction with the district court, and that the latter is without jurisdiction to review the proceedings of the municipal court or to declare the judgment void. The demurrer was sustained.
A copy of the judgment entry in the municipal court was attached to, and made a part of, appellant's petition. It is recited therein that appellant, as garnishee in Iowa Adjustment Company against Fred Mace, filed its answer as such garnishee; that the answers were controverted by the plaintiff in that action; and that the secretary and treasurer of appellant corporation appeared in person, and testified upon the trial of the issue tendered by the pleading controverting such answers; that the court found that appellant was indebted to the defendant in the sum of $500, and entered judgment against it as garnishee for $270.75, the amount of plaintiff's claim, together with costs and attorneys' fees. The judgment further, and in a separately numbered paragraph of its findings, recited that appellant became indebted to appellee because of the purchase of a stock of merchandise of Fred Mace in violation of the Bulk Sales Law, and found that it held such stock as receiver, under the provisions of Chapter 64, Acts of the Thirty-seventh General Assembly.
It is alleged that the finding and order of the court as to the stock of goods was without jurisdiction because no proper notice was served upon appellant. It is conceded in the argument of counsel for appellant that it appeared by its secretary and treasurer upon the trial of the issues tendered by the pleading controverting its answers as garnishee, and that he testified as a witness upon the trial.
It is, of course, elementary that one court cannot sit in review upon the judgment and proceedings of another court of concurrent jurisdiction; but it is also well established that the enforcement of a void judgment may be enjoined in a proper action for that purpose. Jamison v. Weaver, 84 Iowa 611; Worrall v. Chase Co., 144 Iowa 665; Blain v. Dean, 160 Iowa 708.
It is not entirely clear whether the judgment against the garnishee was entered upon the theory that an indebtedness arose out of the purchase and possession of the stock of merchandise, or whether it existed in some other form and 2. GARNISHMENT: arose on a different consideration; but it seems notice: to us that this is quite immaterial. There was a insufficien- finding that the garnishee was indebted to the cy cured by defendant in the garnishment proceeding. This appearance. finding may have been ever so erroneous, without in any way affecting the jurisdiction of the court to enter judgment. The appearance of appellant as garnishee, in resistance to the issues tendered by the pleading controverting its answers, gave the court jurisdiction of the person; and it was proper, upon a finding that appellant was indebted to the defendant, to enter judgment against it as garnishee. Section 3946, Code of 1897. Surely, the district court could not review the findings of the municipal court on a question of fact, and either reverse or cancel a judgment entered therein, unless such judgment was void upon the ground that the court was without jurisdiction of either the person or the subject-matter, to enter it. Here, the court clearly had jurisdiction of the garnishee and of the subject-matter: that is, the court had jurisdiction in that proceeding to determine, upon the issues joined on the answers of the garnishee, that it was indebted to the defendant. The court did not undertake to assume jurisdiction over the merchandise alleged to have been purchased by appellant in violation of the provisions of the Bulk Sales Law, but found as a fact that, under the statute, it held the same as a receiver or trustee for the benefit of creditors. The court did not assume to appoint a receiver to take charge of the stock, nor to require appellant to, in any way, account therefor. The finding of the court upon which judgment was entered was that appellant was indebted to the defendant in a sum greater than the amount for which judgment was asked.
It is true, as contended by appellant, that the demurrer admits the truth of all matters well pleaded; but the judgment entry, copy of which appellant attached to its petition, recites facts showing jurisdiction; and these facts are not sufficiently negatived by the allegations of the petition. We assume that the concessions made by counsel in argument were for the purpose of calling attention of the court to the true condition of the record.
We are of the opinion that the municipal court had jurisdiction of appellant, as garnishee, and that the judgment rendered against it, as such, is not a nullity; and, therefore, its enforcement cannot be enjoined. — Affirmed.
FAVILLE, C.J., and De GRAFF and VERMILION, JJ., concur.