Thompson & Sons Manuf'g Co. v. Guenthner

Citations

• 5 S.D. 504
• 59 N.W. 727
• 1894 S.D. LEXIS 87

Syllabus

<p>1. Where, in supplementary proceedings for the examination of a third party alleged to be indebted to the execution defendant, such party in good faith denies any indebtedness, the question of fact whether he is so indebted or not cannot be tried and determined in such proceeding.</p> <p>2. Section 5182, Comp. Laws, provides, in effect, that in such case the question of indebtedness shall be determined in an action by a receiver.</p> <p>3. In such case an order of the court or judge, after trial of such question of fact, that such party pay over to the sheriff a certain amount so found to be owing to the execution defendant, is not only erroneous, but without authority, and void.</p> <p>4. Upon such facts, such an order should ‘be set aside by the court upon proper application, and it is error to refuse.</p> <p>5. The rule that an order refusing to set aside an appealable order is not appealable is not imperative where the first order was plainly and obviously made without jurisdiction.</p> <p>(Syllabus by the court.</p>