The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1918-02-11
Supreme Court
Decisions
IRON Ramsev County.

Brocket Mercantile Co., a corpora
ton, plaintiff and appellant, VS.. Fred
/ Lemke, defendant and respondent:
Imperial Elevator Co, a corporation,
/ and John w. Maher, garnisiees and
respondents; Henry Lemke and Viii
ents
Syllabus:
! ]. Where one is served with gar
nishment process, and within the time
/ required by law makes and serves on
the person who brought such gar
nishment proceedings mis- affidavit or
answer which fairly and fully sets
forth the facts and circumstances
or under his control belonging to the
defendant, and no issue is taken with
such answer or affldavit of the gar
nlshee within thirty days, the time
maintaining such garnishment pro-
ceedings shall take issue with such
garnishee's affidavit or answer, the
Iacts and matters stated in such affi-
oaVit or garnishee answer are con-
elusive and must be taken as true
e. In the case at bar there were
Two garnishees, the first being John
w. Maher, the second being the Inn
disclosed -that he had security upon
the crops grown upon certain lands
sold by him to Fred l. Lemke, the de-
Iendant. Nowhere was there any adj
~. slo OF liability in such affidavit
such liability therein. No issue was
taken on such affldavit or answer of
John w. Maher within thirty days,
ana hence his statement of non-lia-
bility to the defendant must be taken
as conclusive
3. The Imperial Elevator Co. dis
closed in their aff1davit or answer
wheat and barley which was daiive
cred at their elevator, was supposed
TO be owned by John w. Maher and
one Havener. That after such grain
was delivered to the elevator, notice
was served upon them by many per
sons, naming them. who claimed an
interest or lien upon said grain. and
GAINED they owned the same in
YIN or In part; 1t appears from
liens filed against defendants alleged
half or such crop to more than equal
the value thereof, which claims were
NJ MEG a prior to the time of the service
OF the garnishment process. Most or
all or such liens were disclosed by the
amdaYft of the garnishee No issue
was taken on such affidavit, and the
Srutn or the matters stated therein
becomes conclusive. The PLAINTIFF not
having taken issue with such alleEa-
lions, nor any steps to bring in any
OF the claimants by serving the order
~ me court upon them and thus pro-
seedlng IN the way prescribed by law
TO compel such claimants to prove
and establish the validity of their
claims II must be concluded as a
mater OF law that all of the allega-
ions and statements in the Earnishee
af1daYit or answer are true, and that
me claimants referred to in such am
laYit are the owners in whole or I'm
part Of half OF such grain which IS
alleged as belonging to the defend
mt and no issue having been taken
70 as to compel the claimants to es-
aDilsh the validity of their liens adj
FR kag ~. -
he service of the Earnishment sum
mons and process, such liens must be
leio TO be valid, and the defendant
leld 70 nave no gaFnishable interest
n such grain at the time of the serv-
ce of the punishment process.
T. IL appearing by the testimony
nat John w. Maher sold to Fred
1emke certain land upon crop pay
nent, said Lemke to pay for such
and by delivering one-haIf of the
rop raised thereon during each year
I the life Of the contract and Ii ap4
caring by the testimony that the de-
endant leased said land TO one
iavener for the year 1908 being the
ear In question, when the crops I'm
ispute were raised upon said land.
was held so far as the record dis
UGH land as aforesaid that at the
Inc OF the service of the garnish-
tent process Fred Lemke had no
interest in such crops.
srved upon the garnishee the liabiIi-
Of the Earnishee Is determined by
ne facts and circumstances with ref
renee to his indebtedness to the de.
III any, at the time of the
sryice Of the Rarnfshee summons a
mango In events after the service OF
he garnishee summons upon the gar
ishee cannot increase his liability
Appeal from the Judgment and or
or of the district court of Ramsey
luntys hon. G. w. BUTTE, judge.
Affirmed.
Opinion Of the court by Grace. J.
From HettInEer County.
Peter Matthias. plaintiff and re-
VS.. State Farmers Mutual
all Insurance Co, corporation. de-
ndant and appellant.
Syllabus:
1. This action is based on a hail
surance contract and on an adjust
ent OF loss. The plaintiff alleged
I'd proved to the satisfaction of the
ry that by oral agreement his loss
as adjusted at 1895; that being un-
lie to read English he signed q pa
II fixing the loss at $3.50.
2. The signing Of paper does not
AXE a contract Under the plain
ords of the statute there can be no
ntract where the consent Of the
rites to the terms Of the same are
t free and mutual, and consent is
( free when 1t is obtained by fraud
Idue influence or mistake. In this
Sc the jury found and had q right
find that the document claimed to
a written contract was not a con-
act
Appeal from the district court OF
sttinger county; Hon. w. c. Craw-
I'd, Judge.
Defendant appeals.
Affirmed.
Opinion Of the court by Robinson, y.
Blrdzell and Christianson, j., con-
r in result.