Fleming v. Baxter , 20 Colo. 238 ( 1894 )

Mr. Justice Goddard

delivered the opinion of the court.

The liability of the garnishee, as well as the validity of the judgment against the defendants in the main suit, is contingent upon the possession by the garnishee of the notes sought to be impounded at the time of the service of the garnishee summons, since the attachment of property of the nonresident defendants within the state was an essential prerequisite to the jurisdiction of the court to render a judgment against them in the main action, and to the collateral liability of the garnishee. The burden of proving the existence of this fact devolved upon the plaintiff in the attachment suit.

“ In order to a recovery against a garnishee, it must be shown affirmatively, either by his answer or by evidence almnde, that he has property of the defendant in his possession, of a description which will authorize his being charged, or that he is indebted to the defendant. The law will not presume him liable, nor will he be required to show facts entitling him to be discharged, until at least a prima facie case is made out against him.” Drake on Attachment, sec. 461.

In this particular it is clear, from the testimonj^ introduced upon the trial of the traverse to the garnishee’s answer, that plaintiff wholly failed. Instead of showing the possession of the notes in the garnishee at the time of the service of summons upon him, it is uncontradicted that he had disposed of them and parted with their possession prior to that timé. The court below was manifestly of the opinion that the receipt of the purchase price of the notes, after the service of summons, was sufficient to render him liable as garnishee. In this the court erred. We think it clear, under our statute, that the liability of a garnishee is to be determined as of the same time the summons is served. In other words, only debts due, or by virtue of a then existing contract’ are to become due from the garnishee to the debtor, and the property then in his possession belonging to the debtor is impounded, and the garnishee’s liability is not extended-beyond such property or indebtedness. The cases that hold that a garnishee is chargeable for whatever may come into his hands after service, and before answer, are based upon peculiar statutory provisions that are not found in our garnishment act. It follows, therefore, that since the garnishment of plaintiff in error was ineffectual to attach any property of defendants at the time of service of the writ, the court acquired no jurisdiction to render- judgment against defendants; and as this was essential to a valid judgment against the garnishee, the judgment rendered against him is clearly erroneous.

From this conclusion it results that the judgment rendered by the trial court against the garnishee must be reversed, and the garnishee discharged.

Reversed.