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Where a court appoints a commissioner to take the answer of a garnishee, without fixing a time or place for such answer, the garnishee should not be judged in default for failure to appear and answer unless notified by the commissioner of the time and place fixed for taking his answer: Thomas v. Hoffman, 17 N. W. Rep., 431.

Where a garnishee refuses to answer questions propounded before a referee appointed to take such answers and plaintiff upon the facts being reported by the referee moved for an or

SEC. 2985.

The garnishee is entitled to reasonable notice to show cause, but it is not necessary that such notice be served ten days before the term. Ten days notice during term, held, sufficient in particular case. After failure to appear in response to such notice, no motion is necessary, and no new judgment should be entered: Langford v. Ottumwa Water Power Co., 53-415.

answering questions touching such indebtedness, on the ground that such answers would be testimony against her husband. It could not be regarded as against her husband's interest that his property be subjected to the payment of his debts: Thomp son v. Silvers, 59-670.

der requiring her to answer at a particular time, at which time she refused to answer and her refusal was sustained by the court, held, upon appeal, that although the plaintiff might have been entitled to judgment by default against the garn shee for refusal to answer questions propounded by the referee, yet having obtained an order for further examination he could not have judgment against the garnishee for refusal to answer when the court sustained her objections, although in so doing the court erred: Thompson v. Silvers, 59-670.

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Where a garnishee seeks in equity | is also erroneous, but is upon the adto have a judgment against him set verse party who insists that it is just. aside on the ground that the notice The garnishee is not presumed to be was not sufficient to give the court indebted: Padden v. Moore, 58jurisdiction, the burden is not upon 703. him to show that the judgment

SEC. 2994.

800.

The delivery bond is not superseded | bond given on appeal: State v. Mcor rendered null by a supersedeas | Glothlin, 61–312.

SEC. 2996.

A mistake in the bond as to the | to the sureties: Ripley v. Gear, 58court in which the attachment issued will not render the bond invalid as

SEC. 3010.

460.

803.

The return of the writ is the stat- and must go together. Therefore, utory evidence of what it purports to held, that judgment against a gar show. It must be endorsed upon nishee could not be properly rendered the writ or made upon a paper in the absence of a return of the annexed thereto. The writ and re- writ showing the garnishment: Rock turn constitute essentially one record | v. Singmaster, 17 N. W. Rep., 744.

SEC. 3016.

804.

A third person, not a party to the | Wheaton, 57-304. action, claiming to be owner of attached property, having discharged it by giving bond as provided in § 2996, may still proceed under this section. The property does not cease to be attached property, though released by the bond: Tuttle v.

SEC. 3017.

This section clearly contemplates that any claim, lien, interest, or title, in and to the property attached,! may be set up at any time before the proceeds are paid to the plaintiff in attachment: Howe v. Jones, 57-130.

Where, in an attachment suit | individual partners jointly, the writ brought against a partnership and

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Where the writ was defective in not stating the sum claimed in the action, held, that it might be amended in this respect after levy: Atkins v. Womeldorf, 53-150.

tions in the petition for attachment, that plaintiff was about to remove his property from the state: Hastings v. Phoenix, 59–394.

by the judge of the amount of property to be attached, as required by $2955, held, that upon motion to discharge attached property on that ground, the court might order as to how much property should be held:

Where, in an action not founded on contract, there was no allowance | Magoon v. Gillett, 54-54.

SEC. 3025.

806.

If there is no valid existing judgment when the execution is issued, it is void: Balm v. Nunn, 19 N. W. Rep., 810.

An execution must be regarded as existing until it is returned, although the return day has passed; and a sale under a second execution, issued before the first is returned, should, as to judgment creditor purchasing thereat, be set aside: Merritt v. Grover, 57-493.

that another execution was in existence and not only stood by and made no objection to the sale under the second, but at the expiration of the time for redemption surrendered the possession of the property without objection, held, that he could not thereafter in the absence of a showing that the land was sold for less than its value and an offer to pay the judgment, take advantage of the error: Merritt v. Grover, 61-99.

The provision that but one execu- The mere issuance of a second tion can be in existence at the same writ before the return of the prior time is mandatory and not merely execution under which the levy has directory; nevertheless, it may be been made, is not of itself sufficient waived by the party for whose bene- to establish the abandonment of fit it was enacted; and where it such levy: West v. St. John, 19 N. appeared that the party against W. Rep., 238. whom the execution was issued knew

SEC. 3026.

The proper method of enforcing obedience to a continuing order in the nature of a mandatory injunc

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tion is by attachment for contempt: State v. Baldwin, 57-266.

807.

SEC. 3029.

As to effect of statements in sheriff's | judgment docket, see notes to section return entered by the clerk on the 3038.

SOS.

SEC. 3037.

Failure to return execution within | introduced in evidence; nor can the the time here required, does not render the officer liable to an action for damages, unless special injury is alleged and proved: Musser v. Maynard, 55-197.

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return be explained by parol, unless it is shown that it has been made and lost or cannot be produced: West v. St. John, 19 N. W. Rep., 238. And see notes in supplement to $ 3043.

Where the right of the sheriff to subject the property levied on to the satisfaction of the execution, is contested by an action of replevin, he should not make any return until af ter the disposition of the replevin suit. Having made a levy it is competent for him to exhaust the property on that execution, no matter what time expires between the levy and sale of the property: Cox v. Currier, 17 N. W. Rep., 767.

the execution was satisfied by defendant giving security, which was taken by order of plaintiff and an entry by the clerk upon the judgment record of the same facts, did not show a satisfaction upon which a subsequent encumbrancer could rely: Aultman v. McGrady, 58-118.

then, unless the order of liability is stated in the judgment: Bonney v. Cocke, 61-303.

809.

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Althouse, 56-513.

If the execution and return be shown to be lost, parol evidence may be introduced to show the contents of such return, but for no other purpose: Le Barron v. Taylor, 53-637.

was in possession of the debtor, held, not sufficient: Rix & Stafford e. Silknitter, 57–262.

The sheriff or constable is only held to the exercise of ordinary care in the preservation of the property in his hands: Creswell v. Burt, 61-599.

810.

The question decided in Loring v. Small, 50-271, again considered and

that case followed: Whiting v. Story Co., 54-81.

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Showing and delivering to the officer a bill of sale purporting to transfer the property to claimant, is not sufficient to constitute notice to the officer: Gray v. Parker, 53–505.

It is the imperative duty of the of ficer under this section to make a levy at once, and it is not his duty, on the mere disclaimer by the defendant of any interest in the property, to institute an inquiry as to the truth of the statement: West v. St. John, 19 N. W. Rep., 238.

Where the officer has been indemnified, it is his duty to use all proper means to make the levy effective on the property: Cox v. Currier, 17 N. W. Rep., 767.

This section does not apply to a case where the execution defendant claims that the property is exempt from execution: Parsons v. Thomas, 17 N. W. Rep., 526.

Acceptance of service of such notice by the sheriff's deputy is not binding: Chapin v. Pinkerton, 58236.

been sold by the sheriff, proper notice of ownership having been given: Hardy v. More, 17 N. W. Rep., 200.

Notice served upon an officer by a mortgagee of property under chattel mortgage that such party is the | owner of the property by virtue of a certain chattel mortgage and demanding the immediate return of the goods to the place from which they were taken, is sufficient notice to constitute a taking possession of the property under the terms of the chattel mortgage authorizing the mortgagee to do so whenever he chooses, and such notice evidences the intention of the party to claim his right of possession and foreclosure as provided in the mortgage: Wells v. Chapman, 59–658.

These provisions do not relate to levy of attachments and in an action of replevin against an officer holding property under attachment it is not necessary to aver the service of notice of ownership as herein contemplated: Hall v. Ballou, 58-585. (But now Where the sheriff seizes property there is a statute in relation to atof one person under an execution tachment containing provisions simagainst another, the owner may main-ilar to these three sections: See 20 G. tain replevin to recover the value A., ch. 45 in supplement to page of the property, even though it has 792.)

SEC. 3056.

If indemnifying bond is given, the officer must hold the property and cannot relieve himself from such duty, even by releasing to the rightful owner. His liability is absolute, unless the property is taken from him by legal process: Erans v. Thurston, 53-122.

A sheriff is not liable in damages for failure to levy upon property in the execution defendant's possession if it is shown that such execution defendant had no interest therein subject to levy: Crosby v. Hungerford, 59-712.

Where an officer has several writ3

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