that suit originated, a reference could not be ordered without the written consent of the parties to the action. It was therefore assumed by the court that such written consent as the state statute required had been filed in that case. But in a later case, to which we particularly referred in our previous decision (Investment Co. v. Hughes, 124 U. S. 157, 8 Sup. Ct. 377), it affirmatively appeared that no written consent to a reference had been filed, and for that reason it was held that the case differed materially from Boogher v. Insurance Co., and that it could not be reviewed on writ of error. The record in the case at bar, as heretofore stated, shows that the consent to the order of reference was given orally in open conrt, and that there was in fact no written stipulation waiving a jury, such as the act of congress requires to render a case reviewable on writ of error when the parties dispense with a jury. It is therefore governed by the ruling made in Investment Co. v. Hughes, as well as by the decision in Boogher v. Insurance Co., supra; ",-herefore the petition for a rehearing must be, and it is hereby, denied.
WILE et al. v. COHN (FARMERS' S'l'A'l'E BANK IOWA, Garnishee). 1.
CONSTITUTES-NoTICE OF GARNISHMENT.
(Circuit Court, S. D. Iowa, W. D. September 17, 1894.) Rev. St. § 915, gives plaintiff, in common-law causes in the United States circuit court, remedies by attachment or other process against defendant's property, similar to those provided by the state statutes. Code Iowa, § 2962, provides that the clerl( shall issue the writ of attachment. Section 2967 provides that property of defendant held by a third person may be attached by giving the latter notice of attachment. Section 2975, as amended by Laws 18th Gen. Assem. c. 58, provides that garnishment is effected by informing the supposed debtor that he is attached as garnishee, and leaving written notice not to pay any sum due, or deliver' the property, to defendant, etc. There is no provisio'l' in the Revised Statutes or Iowa Code requiring either of such noticlc"S to proceed from the clerk. Held, that a notice to the garnishee is not a "process," within Rev. St. § 911, relating to process, and that such notice in actions in the United States circuit court in Iowa is properly signed by the marshal, and need not bear the seal of such court or the teste of the chief justice of the United States. 2. GARNISHMENT IN STATE COURT- V ALIDT1'Y. Where, in an action pemding in a United States court in Iowa, it appeared that in certain actions, aided by llye writs of attachment, lately pendlng in an Iowa state CQUl1:, the main defendant had been duly notified of pendency of such actions, and also of garnishment proceedings and judgments had been rendered against him therein, and that the garnishee had appeared in such actions, and filed his answers therein, submitting himself and the goods in his hands to the jurIsdiction of the Iowa court, and judgments were rendered, according to the form of the Iowa statutes, against said garnishee, and condemning to sale property in his hands as belonging to such main defendant, held, that irregularities in the garnishment notice served on the garnishee do not affect the validity of the judgments thus rendered against him.
In garnishment in a United States court in Iowa, against a bank of which J. was cashier, it appeared that J. took possession of defendant's (mortgagor's) stock of goods under a mortgage to the bank, aJ;Id . sold
given to secure; that, while J. was thUltw,POSBession of attachments issued out ot an Iowa state court against the propertY 01' the mortgagor, and garnIshment notices were served on d., and notlcestbereot also served on maIn defendant; that such garnishee appeared In the Iowa court, and! filed his answers therein. Held, that judgments in such Iowa courts co1l4emning to sale the property SQ in the garnIshee's hands were not voId bIlcause tpe notice to garnishee required. hIm to appear at a da.te prior to tbe first day ot the Dext term of court, instead of on such fir$t day, as required by Code Iowa, § 2979. Padden v. Moore, 12 N. W. 724, 58 Iowa, 703, distinguished. Fanning v. Railroad Co., 37 Iowa, 309, applied.
.. SAME-NOTtoE TO CABRIElR OF BANK INSTEAD OF BANK-EFFECT.
aumll1'IlJilt· goolls to pay the Indebtedness held by theblLnk,! which said
Nor do, the facts that the garnishment notice in the Iowa court was served on the cashier Individually, and that the judgment therein was against him, render the bank liable to It subsequent garnishment In the federai court. i
Action in attachment by Wile and others against W. Cohn, In which the Fafmers' State Bank of Charter Oak, Iowa, was summoned as garnishee. Garnishee discharged. Wright & Baldwin, for pl,aintiffs. Shaw & Kuehnle and Sims & Bainbridge, for garnishee. WOOLSON, District Judge. This is a contest between plaintiffs, " attaching creditors, and the Farmers' State Bank of Charter Oak, Iowa, as garnishee defendant. The parties having filed stipulation, waiving jury, the cause was tried to the court. The following facts are by me found as proved herein: Plaintiffs citizens and residents of the state of New York, and were at the date hereinafter named engaged as a copartnership in the city of Buffalo, N. Y., in the business of dealers in clothing, etc. Defend· ant W. Cohn was in l)ecember, 1893, a citizen and resident of the state of Iowa, ,and engaged at the town of Charter Oak, Io'wa, in the business of clothing merchant. The garnishee defendant bank is a corporation organized under the laws of the state of Iowa, an<l doingbnsiness at the said town of Oharter Oak, Iowa. Upon December 12,' 1892, said Oohn was indebted to said bank in the Sum .of $950. The bank cashier on that day demanded of Cohn security for this indebtedness, and thereupon Oohn executed a chattel mort· upon alIbis "stock of goods and merchandise,store furniture, Jind fixture!?, :0,1 ,whatever kind," then owned by him, and kept in the buil<ling· w:hic,h he occupying as his clothing store. The mortgageejsnamed therein as "D.O. Johnson, cashier, of. Charter . Oak, Iowa;". and the mortgage is conditioned upon the payment "1,0, ,the said D.', 9. Johnson, caS.h.ier,' his heirs, etc., of and de· Oohn's two promIssory notes, dated December 12, ,scribed as follows, to wit: One for $950, payable on demand, 1892; one,for $4,000,; payable (}D demand, 1892,-with interest, etc. The mortgage provided for public saled auction after five days' notice. The evidence shows that this $950 note was given for the indebted· ness,due frQm Cohn to the bank. It named as its payee "D. O. Johnson, cashier." The $4,000 note named as payee Harry Cohen. This last named note was surrendered within a few days after its exe-
cution, and was canceled, leaving the mortgage standing as security fQf only the said indebtedness to the bank ($950). This mortgage was immediately filed fOf record, and, on the day following (December 13, 1892), Cohn delivered to said Johnson the key to the store in which was the mortgaged property, and also delivered to Johnson a written agreement or consent that said Johnson should sell the mortgaged property at private sale. On same day, Johnson sold, at private sale, sufficient of said mortgaged property to realize, at 75 cents on the dollar of cost price, the sum of $1,050, thus paying the bank's debt, and leaving, besides, $100, belonging to said Cohn. In December, 1892, and before the commencement of the case at bar, Gilmore & Ruhl, Block Bros., and certain other creditors of said Cohn (including the First National Bank of Omaha) severally.instituted their actions against said Cohn in the district court of Crawford county, Iowa, aided by attachment, in each of which actions said D. O. Johnson was served with notice of garnishment; some of said garnishment notices cited him to appear before said Crawford "district court, commencing the 15th day of February, 1893," while others cited him to appear before said court "on the first day thereof, which will commence on February 15, 1893." In the action by said Omaha Bank the notice summoned him to appear on February 20, 1893. On the 1st day of February, 1893, term of said Crawford district court, "to wit, February 20, 1893," said Johnson appeared in each of said actions, and filed his answer as garnishee, admitting the "possession of a remnant of a stock of goods and fixtures, situated in Charter Oak, Iowa, in the storeroom where the defendant formerly conducted business," and which: answer contained the following language:
"The goods were mortgaged to me by the defendant, to secure a debt due the Farmers' State Bank of Charter. Oak, Iowa, of which I am cashier. By the consent of the mortgagor, I sold goods enough out of the stock to pay the debt due the bank. It was in amount $950. '.rhe balance of the goods I now hold, subject to the order of the court."
In each of these actions, except that brought by said bank (in which Cohn appeared by attorney), said Cohn was personally served with notice of th4:1 pendency of said action, and also with notice of the pendency of garnishment proceedings, as required by the statutes of Iowa; and, for failure to appear, his default was entered therein, and judgment duly rendered against him for the several daims sued on; and the court found that property of Cohn's, "to wit, a stock of clothing and gents' furnishing goods, situated in Charter Oak, Iowa," was in the hands of the garnishee, and adjudged that said stock be condemned and ordered sold on special execution, etc. Subsequently, these goods were sold, on special execution, issued under these judgments, by the sheriff of Crawford county, for an amount not sufficient to pay the aggregate of said judgments above described; and the proceeds were paid into said Crawford c10unty court, for further order of court thereon. The Omaha bank judgment, condemning and ordering sale of said goods, was rendered M,ay 2, 1893. In each of said other actions, judgment was rendered February 24, 1893.
Wile said'Oo-hn,,:Was court December,19;, 1892, byfiling petition, aided bY;llittaehtnent; and on the,next day (December 20th),',and subsequent to., the said levies in the state court, said attachment was levied biY the service of the writ and notice of garnishment l l1poIithe Farmers' State Bank of Charter Oak, Iowa, the notice of garnishment being served on said bank by reading and delivering copYW D.O. Johnson,' cashier of, ,said bank. Said notice is in the used in Iowa in like proceedings in the state courts, andis'8ilgned by the marshalof:this court. Due noticeoOf said garlHlIhment having been given to said Cohn, this cause has now c6meoo·for trial upon the answer of said Farmers' State Bank, to said COhn and of possession tOr control of auyof his ,property, and the pleading by plaintiffs :filed, controverting: said answer of said bank; , ' The firstpoitit to be considered is the plea of the garnishee bank, as set liPiD' its answer, that no 'legal garnishment has been made herein, l'eaaon thatlthe garnishment notice is signed by the marshal qf this court, arid was'not issued under the teste of the chief justice of the supreme:.collrt of the United States, and does not have the seal of this' court 'attached thereto; in other words, that said garnishment notice lis a "process" of this court, and therefore must conform tothe requixoements of section 911 of the Revised Statutes, relating toprocels; and, because it does not so conform, it isvoid,and this court hasno;jurisdictipn over said bank as garnishee herein. The reasoning by which the garnishee seeks to enforce this ,point is based',on the assertion that "a garnishment is, in effect, a suit by the defendant, in the plaintiff's name, against the gal1nishe2;" and Daniels v; Olark, 38 Iowa, 559, is cited as sustaining this position. But a reading of that case disproves the claim. & Co. had, recovered judgment against one Riniger, and garnished Clark, as an alleged creditor of Riniger. Upon the trial the court found the garnishee indebted to Riniger, and rendered jndgment accordingly. The case having been appealed to the circuit court, vetitions of intervention were filed by persons claiming thl:!-t the indebtedness· from Clark to Riniger had been assigned to fhem before Clark was garnished; and the main contest was as to the right of the circuit eourt thus to permit the filings of these'intervening l'etitions. The supt'eme court sustain the following language: the right to,so file; and
"The plaiDtlffocqupies, as against the garnishees, the position of the defendant, wit,h po ,IPore rights thap. the defendant had, and liable to be met by any defep.se' 'which the garIiishee might make against any action by the defendant." , '
And theref()re:the court conclude that, since Clark was garnished after the had. Qeen assigned to interveners, Daniels & Co. had no stronger better right to it, or, to appropriate it, under their garnishment of. ,Clark, than Uiniger, the debtor, would have had, had he brought sll-it therefor. This principle, thus applied, is correct beyond question.
The claim of garnishee herein, above stated, is to be applied to the relation of the parties, and to determining the substantial rights existing between them, in a garnishment proceeding. But it cannot be thus applied to the method of proceeding. The method is to be governed by the statutes of the state, in the absence of any specific rule of the' court relating thereto. Under section 915, Rev. St., the plaintiff is entitled, in common-law causes in this court, to remedies, by attachment or other process, against the property of a defendant, similar to those provided by the statutes of the state. We turn to these statutes. Section 2962, Oode Iowa, provides that the clerk shall issue the· writ of attachment, directing the officer to attach the property of the defendant. Section 2967 provides that property of the defendant which is held by a third person may be attached, by giving the defendant and such third person notice of attachment; and debts due to a third person are attached by garnishment thereof. Section 2975, as .amended by chapter 58, Laws 18th Gen. Assem., provides how garnishment is to be effected, viz. by informing the supposed debtor or person holding the property that he is attached as garnishee, and by leaving with him a written notice to the effect that he is required not to pay any debt due, or thereafter to become due, by him to defendant, and that he must retain possession of all property of defendant then or thereafter in his custody or under his control, etc. And section 2979 further provides that, unless exempted under other sections of the Oode, the notice must also require the garnishee to appear on the first day of the next term of the court where the main action is pending; while section 2983 provides for payment to garnishees, generally, of the per diem and mileage, by statute, payable to witnesses. We must apply these Oode provisions to an action instituted in this court, as required by section 915, Rev. St. The clerk of this court issues the writ of attachment,-the process of this court,-which, under section 911, Rev. St., is to bear the teste of the chief justice, and have affixed thereto the seal of this court. This writ directs the marshal of this court to "attach the propert,r of defendant," etc. Where goods are in the possession of a third person, the attachment is seryed or levy made thereunder by notice to defendant and such third person, while debts due from a third person and property in third person's hands are attached or levied upon by garnishment; that is, by notice thereunder, as provided by section 2975, Code Iowa. Now, there is no provision of the Revised Statutes nor of the Iowa Oode requiring either of these notices to proceed from the clerk. Indeed, the spirit of the Oode provisions, as well as their letter, contemplates that the sheriff, or officer holding the process which the clerk has issued, shall give these notices; and the uniform practice in the state courts in Iowa conforms to this construction; and in giving such' notice, the sheriff, or other officer having the writ of attachment, affixes his own signature to the garnishment notice he is thus required to give. In other words, these notices hecome and are simply and merely a part oj the levy which the officer makes. When he is attaching property so sit-
in accordance with and under the requirementllof the proeetilaorwrit of attachment which he holds, such notices are "mattel's pt!rtaining to the execution of the writ." Stove Co. v. Shedd, 542, 48 N. W. 933. And since the notice is to be given by theotBcer,and, as a part of the:levy he is making, why require that the Officer shall have this notice signed by the clerk, and bear the teste. of the chief justice? These considerations, as well as the uniform practice heretofore obtaining in this court, and which is based on the uniform practice 'in the state courts of Iowa, justify theconclnsion that the notice of garnishment which is given by the otncer who is executing a writ of attachment is not a "process," within the meaning of section ,911, Rev. St.; and that the notice of gar:nishment herein was not required to bear the teste of the chief jUlilticeof the United States,or the seal of this court, and same was properly signed by the marshal. Plaintiffs urge with much force that the garnishment proceed· ings abQve described, in the district court of Crawford county, Iowa, were and are of no. force and effect as against these plaintiffs' garnishment herein; that in all of these cases, instf.ad of garnishing the Farmers' State lJank of. Charter Oak, Iowa, which, as plaintiffs insist, was in possession of the property under the chattel mortgage to said bank (or to "D. O. Johnson, cashier"), the attaching plaintiffs in the state court garnished "D. O. Johnson." In other words, the possession of Johnson, in so ashe was in possession, was simply the possession of the bank; and that, since the Iowa statutes require the' garnishment of the person in possession of the goods, garnishment notice must be given to such person in possession, which in this case was the Farmers' State Bank; and since in none of said cases was said bank garnished, in accordance with the Iowa statutes, while in the case at bar such bank was so garnished, the garnishment herein, though at a later date than those in the state court, is the only valid garnishment. The evidence is without that the defendant Cohn (mortgagor) gave the key of the storeroom in which were his mortgaged goods to D. O. Johnson, and also gave him written consent to sell the goods at private sale; that Johnson did sell at private sale some of the goods, and whose proceeds met the debt to the bank of which he was cashier; that, after such sale, Johnson retained the key, and had the remainder of the goods in his possession and under his control, which he exercised in different ways; that he rendered to the sheriff a bill for his services as custodian of said unsold goods; and that, after garnishment, Johnson submitted these goods to the jurisdiction of the Crawford district court, in the garnishment. proceedings therein pending, for its judgment thereon, which judgment said court rendered, finding said goods to be in possession of said garnishee, D. O. Johnson, and condemning same to sale as the property of said defendant Cohn. Plaintiffs present the further point, which we may consider in connection with the point just above named, that all of said garnishment notices in the state court, except that 'of the Omaha bank, notify the garnishee to appear at a date prior to the first day
WILE 11. COHN.
of the next term of said· court, and are therefore .not in accordance with the Iowa statutes, and are invalid, and the judgments thereunder void as to these plaintiffs, who were not parties to these actions. Let it be here noted that the validity of the said judgments of the state court in the cases above described is not attacked, save in the particulars above just enumerated. By section 2979 of Code of Iowa it is provided, when the sheriff is not directed to take answer of garnishee (section 2980), that the notice must require the garnishee to appear on the first day of the next term of the court wherein the main cause is pending, etc. A portion of the garnishment notices complained of use this phraseology, in citing the garnishee to appear: "To appear in said Crawford district court on the first day thereof, which will commence on February 15, 1893." Without delaying to consider whether this phraseology is, in legal effect, the same as that of the other notices, which cite the garnishee "to appear at said court on February 15, 1893," without using the additional words found in the preceding quotation, I shall, for the purpose of this case, consider them as of the same effect, since the conclusion reached must be the same, whether these are of same or different effect in the particular just noted. Counsel do not disagree in the general proposition that garnishment is in the nature of a proceeding in rem, and that in all proceedings in rem the thing against which proceedings are directed must be brought within the jurisdiction of the court by a virtual seizure thereof. McDonald v. Moore, 65 Iowa, 171, 21 N. W. 504; Gage v. Maschmeyer, 72 Iowa, 696, 34 N. W. 482. As requisite to this jurisdiction, there must exist at the time a live writ or process under which the garnishment is attempted. The authorities very generally hold that merely voluntary acceptance by the garnishee of notice of garnishment is a nullity, as against attaching creditors, in whose suits jurisdiction is regularly obtained by the service of process. , 2 Wade, Attachm. § 336, and cases cited; Edler v. Rasche, 67 Wis. 653, 31 N. W. 57; Steen v. Norton, 45 Wis. 417; Desha v. Baker, 3 Ark. 509; Rock v. Singmaster. 62 Iowa, 511,17 N. W. 744. Under the Iowa statute (section 2975, Code, as amended by chapter 58, Laws 18th Gen. Assem.), the statutory notice to main defendants of the fact of garnishment proceedings having been instituted is essential to the jurisdiction of the court over the alleged indebtedness, attempted to be garnished. Williams v. Williams, 61 Iowa, 615, 16 N. ·W. 718. We must bear in mind, however, as stated by Wade (Attachm. § 336), that "the doctrine as to the voluntary service and waiving irregularities is so completely under statutory control that there is no common ground upon which conflicting authorities may be brought to the test of principle." The supreme court of Iowa has had occasion to consider some of the elements relating to irregularities, etc., in garnishment proceedings, and what effect voluntary appearance and answer by garnishee have thereon. When we attempt to consider the alleged invalidity of the garnishment proceedings in the Crawford district court, these Iowa decisioos are controlling, in so far as they bear upon such pro-
ceedings. Plliinti1fS':contend thatiluch proceeding-iii' are,'void as to garnishment attemPted Thesepoooeedings were attempted under statutes of Iowa,wherein judgnie'i1tsi were rendered adj:udging that property of the main defendant was in possession of 'the:pel'$Oli who J1Rd'appeared and answered as garnishee, and condemning'same to sale;' 'and thereafter, upon proceedings had in pur:suanceot'the statllte,'such property was sold on"l!lpecial execution, issu.ed, pursuant to said judgment. ManifestlY,therefore, the deci-sionS of the supreme court of Iowa, if such decisions exist and applicable, ought in this court tobs the test-the rule to be followed thervalidity of judgments. . ' As to' saidproce¢dings in the state court; the evidence concluSiiVelyestablishes as to each case (1) that a writ of attachment issued ,:pursuant to the Iowa statute; (2) that under such writ notice was served tlpon D. O. Johnson; (3) that garJohnson appeared in such suit, and 'filed his answer, ad'm:ittin:g 'having in' his', possession property of'the. main defendant; (4) that the state court found that 'notice had been served, accordingitostatute, upon defendant COhn, Of commencement of action andof i pendency of garnishment proceedings (e:x:cept in Omaha Bank Case, whereCohuappeared by attorney); (5) that the court adjudged, ,the property in the hands of the garnishee to be the propertyof main defendant, Cohn, and condemned same to sale, and proceeds to be applied towards satisfying judgment rendered therein against the main defendant, Cohn, on the indebtedness 8nedoIl;(6) and that,under such special execution, said goods have 'beeli sold, according to the method provided by the Iowa statutes;, and the proceeds of sale have been paid' into that court, , in accordance with said judgments. In the cases where the notice to' ga'fnishee specially cited him to appear ata day other than when the court was in session, and at a date s1>ecified, which was not the first day of the ne:x:t term,-:md thig prior to"(lnd applies triall the cases except that of the Omaha Bank,-is the' judgment against garnishee, and condemning the property to sale, invalid, uhderthe facts above found as established by the evidence? Padden Vi Moore, 58' Iowa, 703, 12 N. W. 724, was a case wherein judgment against the main was rendered. Thereupon, and dnring the same'term of court, execution, w:as issued on said judgment, and, under same, plaintiffs were served with notice of garnishment; citing them to appeal' at a later day of same term and apswer, etc. .On the day named, the garnishees appeared, but the court was not i11session. They understood that court had adjourn:edfor the term, and so returned home. But court had merely adjourned tna: SUbsequent: day. On reconvening of court, and upon the application of jildgment creditor, fa commissioner, was' appointed to take the answers of the gamiishees on a day fixed by the court therefor. The garnishees not ap-pearlng on that day, the commissioner reported that fact to the!<:ourt. At the next term," default was entered against them. Subsequently, notice, under tbe Iowa statute, was served on garnishees, to show why e:x:eCu.ti(lll"shouldnot issue against them. The attorney for gar·
, WILE V. COHN.
nishees presented to the elerk ofthe court a '!howing why execution should not issue; but, instead of filing this showing, the attorney took it home with him to another town. The court ordered execution to issue, and the garnishees brought this action to enjoin the sale of garnishees' property, levied on under such execution. The reason pressed. was that the court had no jurisdiction of the garagainst them, and that, nishees at time of rendition of therefore, such judgment was void. The supreme court passed over all other objections, and decided the case on the sole point that the garnishment notices did not cite garnishees to appear on "the first day of the next term," as required by the Iowa statute (section :;979, Code, supra), and that, "this peremptory provision of law" having been disregarded, the court had no jurisdiction over the garnishees, under the facts shown, at time of rendition of judgment. The court then proceed to inquire "whether the court at any subsequent stage of the proceedings acquired jurisdiction of the garnishees;" and this they decide in the negative, and reverse the decree of the court below which had dismissed the bill brought by the garnishees. Thus far the action of the supreme court favors the contention of plaintiffs herein; but tbe facts in tbat case and in case at bar are dissimilar in many points. We turn to the argument on which the decision reached is based to ascertain the mind of the court. In deciding the first point, wherein they find that the judgment is void, because no statute of Iowa required the garnishees to appear at the date fixed in the notice served on them, the court call attention to the fact that "there was no voluntary appearance [by garnishees] on the day fixed in the notice. None of the steps necessary to make an appearance were taken [by garnishees]." And, in considering the second point,-as to whether jurisdiction was subsequently acquired over garnishees,the court declare that the showing by garnishee why execution should not issue was not an appearance by them to the proceeding, because it did not constitute an "appearance," as defined by section 2626 of the Code. The opinion does not affirmatively declare that an appearance and answer by the garnishees would have conferred jurisdiction. Tbe case before them did not require that point to be affirmatively passed upon. But a careful reading of the opinion can lead to only one conclusion as to how the court would have held on tbis point had its decision been necessary in disposing of the appeal, and as to the mind of the court in that particular. That the argument of the court in the case just considered is general may perhaps be partially accounted for by considering its action in a previous case,-Fanning v. Railroad 00., 37 Iowa, 379. Fanning brought suit against defendant for services as its chief engineer, and recovered judgment in the circuit court of Polk county, Iowa. Upon execution issued thereunder, the sheriff served one Reddish with garnishment notice, and to(>k his answer, as provided by the Iowa statute. Upon this answer, judgment was rendered against the garnishee. Subsequently, the main defendant fih'd its motion to set aside the judgment against the garnishee, foJ' the following, among other, reasons: Because it was rendered witbout authority
of, raw, and the:eourt had no jurisdiction to render the same. The notice to Reddish of hisigarnishment cited hini to appear in the district court (instead of the circuit court, wherein the main judgment'had been rendered, and from which the e:iecution had issued) of ,Polk county; Iowa, on ,the ftrstday of the teJ!m, etc.; and it was eontended that this gave the circuit court no 'jurigdiction over the garnishee. The Iowa sup'eme CQurt do not delay to state extended reasons for the decisio:t> which they reach, but dispose of the matter in these words:
"The' ll.nswerof the garnblhee, taken by the sheriff; was returned into the circUit court from whence theexecutloI)'issued. The court found, upon that ans'Wlilra,nd the proofs offered ca-se, that he was indebted to defendant the ll'\un of and rE\:llde!:'Eld accordingly. The jurisdiction of. the court over the garnishee was complete, and the fact that a notice was sewed on him to appear' alid' answer interrogatories in the district court did liot(affect thepoW'er of the Ctrcuit' court to enter jUdgment against him. For reasons above stated, and the additional ones that the garnishee does not l.;Omplain of, againllt ,him. and it Is, not, alleged that the judgment against the defend/j,nt ,Is, UJ;ljU$t, in whole or in part, the order of theeircuit court o'Verruling apPellant's motion must :i>eaffirmed."
What were the facts which· made the, "jurisdiction of the court over, the gal'l;lishee complete," as decided by the court? Jurisdictionagainst the main defendant, service of a live writ of attachment upon the garnishee (though the notice forming a part of said service was defective), and the filing of the answer of garnishee in the court where the main judgment thereunderexisted. In the cases' deteI'mined in the Crawford district court, instead of an anSwer by the garnishee taken by the sheriff being filed in the court, the garnishee personally appeared, and, filing his answer, submitted to the jurisdiction of the court himself and the property over which he then had and exercised actual control. We ,:\lave, then, in each of these cases, a live writ served, the main defendant duly notified, judgment against such defendant, attempted I!\ervice on garnishee of notice of garnishment, the appearance of the garnishee in court, himself and the property submitted to t1:l.e jurisdiction of the court, and judgment against garnishee under the forms required by the Iowa statutes; and, since the propel'tJ over which garnishee had and exercised rightful control was submitted to the jurisdiction of the court, the irregularity, if one e:dsted, in the garnishment notice, becomes immaterial. Had. the .maindefendant, Cohn, appeared in those cases in the Crawford court,and as in the Fanning Case, supra, moved the court to set aside the judgments rendered against the garnishee, ean it be doubted that the Crawford district court, acting in the line of the above-cited decisions of the supreme court of Iowa, must have overruled the motion, and left these judgments standing in fUll force? And if such must have been the action of that court" with the main defendant a.ttacking' those judgments, how could its action have been different if the plaintiffs in case at bar had obtained standing in those cases, and had attacked the jurisdiction of that court over the garnishee, and the validity of the judgments rendered therein,? If these plaintiffs, as garnishing
SMITH P. NEW ENGLAND HUT. UFEINS. 00.
creditors of defendant Cohn, in enforcing their garnishment, are pressing a "suit which is in effect a suit by the defendant [Cohn], in plaintiff's name, against the garnishee," so far as existing relations and substantial rights of parties are concerned (Daniels v. Clark, supra), the state court could not have reached a different' conelusion upon plaintiffs' attack from what it must have reached upon an attack by the main defendant himself; and especially if the proceedings attacked be viewed in the light of section 2528 of . Code of Iowa, which provides:
"The rule of the common law that statutes in derogation thereof are to be strictly construed, has no application to this Code. Its provisions, and all proceedings under it shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice."
The action which the state court would be required to take must be taken by this court in case at bar. Liability against a garnishee is never presumed, but must be affirmatively shown. Letts, Fletcher & Co. v. McMaster, 83 Iowa, 449, 49 N. W. 1035. The garnishee is not to be placed in a worse position than he would have been in had the claim for which.he is garnished been enforced against him directly. Henry v. Wilson, 85 Iowa, 60, 51 N. W. 1157. The views above expressed necessarily lead to the discharge of the garnishee, the Farmers' State Bank of Charter Oak, Iowa. Let judgment be entered accordingly. To which plaintiffs at the time duly excepted.
SMITH v. NEW ENGLAND MDT. LIFE INS. CO. (Circuit Court of Appeals, Third Circuit. October 18, 1894.) No. 26.
LIFE INSURANCE-NoNPAYMENT OF PREMIUM.
The giving of a note for a premium to an agent, who had no power to postpone payment of the premium or to substitute anything for it, which was never accepted by the company or brought to its knowledge, will not keep alive a polley which prOVides that the company assumes no risk except for that portion of the year for which the premium shall have been actually paid in cash in advance.
SAME-PAYMENT OF PREMIUM.
The acceptance of payment of a quarterly premium and of premium notes 73 days, 50 days, 120 days, and 30 days, respectively, after they were due, in one year, does not show such a course of dealing as justifies the assured in believing that punctuality in paying premiums is not required, so as to excuse delay in paying premiums the following year.
In Error to the Circuit Court of the United States for the Western District of Pennsylvania. · This action was brought by Aline M. Smith against the New England Mutual Life Insurance Company on a policy of insurance for $10,000 issued on the life of Zant McD. Smith. Another action was brought at the same time on another policy, like, in all respects, to the one in this action, and the two cases were tried together. The policies contained the following conditions:
to receive premiums at the day when payable, and not afterwards, but can.
"Gnneral agents appointed directly by the company are alone authorized