“[t]he answer of the garnishee, no issue having been properly joined as to the truthfulness thereof, was conclusive of the truth of the facts therein stated.”
How later courts described this case
- “[t]he answer of the garnishee, no issue having been properly joined as to the truthfulness thereof, was conclusive of the truth of the facts therein stated.”
Written by the judges who cited it.
The opinion
BRATTON, Circuit Judge
(dissenting).
I agree that the case was removable. My inability to join with the majority is .. , ... . , . , limited to the question of dismissal without . ... ^ P i '
Section 620, Oklahoma Statutes 1931, 12 Okl.St.Ann. § 1177, provides that the answer of the garnishee shall become com-elusive of the facts stated therein rcspecting liability to the defendant unless plaintiff shall within twenty days serve upon the garnishee notice in writing that he elects to controvert such answer. The statute is plain, and it is settled law in Oklahoma that the facts stated in the answer in respect of liability of the garnishee to the defendant become conclusive and cannot be inquired into unless issue is joined thereon within the twenty-day period. Davis v. Lilly, 17 Okl. 579 , 87 P. 302 ; Mason v. Miller, 54 Okl. 46 , 153 P. 187 . It is a general statute and has reference to subsequent procedure in the case such as the rendition of judgment against the garnishee in the face of a denial of liability in the answer or the rendition of a judgment against him for an amount in excess of that stated to be due. Compare, White v. White, 130 Okl. 11 , 264 P. 896 .
But that statute does not stand alone, Another comes into play. Section 418, Oklahoma Statutes 1931, 12 Okl.St.Ann. § ^83, deals specially, specifically, and solely with the matter of dismissing actions. It provides in the first subdivision that a plaintiff may dismiss his action without prejudice to a future suit before the final submission of the case to the jury, or to ^he court where the trial is by the court without a jury. A substantial right is_thus vested in the plaintiff. That right is to have the case discontinued without prejudice any rime Prior to final submission unIess a petition in intervention or an answer seeking affirmative relief has been filed. Chicago, R. I. & P. R. Co. v. Reynolds, 157 Okl. 268 , 12 P.2d 208 , 89 A.L.R. 5 . This statute also is plain in its terms. And being a special statute addressed specifically and exclusively to the subject °f dismissals without prejudice it controls ^re over the general statute relating to the conclusive effect m subsequent proceedings , , ., . , r , . , ■ & of the answer of the garnishee which was not seasonably controverted. The judgment should be affirmed without modification.