Warren, Wallace & Co. v. Moore , 52 Ga. 562 ( 1874 )

Trippe, Judge.

The view we have taken of this case narrows the question to the point whether the sayings or letters of the principal debtor made or written after service of garnishment, are competent evidence against the plaintiff, to show want of title in the debtor to the property or effects in the hands of the garnishee. We do not think they are. The rule in all analogous cases strongly so indicates. The sayings of a defendant in execution, made after a levy, would not be competent to prove title in a claimant. Formerly, indeed, such defendant was not a competent witness, either for the plaintiff in execution or the claimant. Now, when not only he, but the principal debtor in a case of garnishment, is a competent witness, the reason for the rejection of their sayings or their letters made or written post litem, is strengthened. A different rule would allow any debtor, after vigilant creditors had moved by garnishment, to prefer any of them, by mere declarations, unsanctioned by any oath. The evidence in this case, that Haynes (the debtor) had consented to an arrangement, whereby the plaintiffs in error were to have the proceeds of certain property, showed that that consent was after the garnishment was 'served. This appears by the testimony of Simmons, and the letters of Haynes; which were written nearly a year after garnishments were sued out.

The Judge, to whom the whole case, law and facts, were referred, decided that under the evidence there was no contract proved between plaintiffs in error and Haynes, or between plaintiffs in error and Turner, and approved by Haynes, which gave a right to them (plaintiffs) to claim that an actual transfer of Haynes’ claims on Turner for the land or the surplus proceeds thereof in excess of Haynes’ liability to Turner, had over been made to them. We cannot say that he decided erroneously under the evidence. What Haynes said to Simmons in 1874, or wrote to Warren, Wallace & Company, or Pournell, about a year after garnishment was sued out, and litigation had arisen, does not affect the matter. Defendants in error objected to this testimony, and it went in subject to all legal exceptions; and as the judge, in pronouncing his decision, said he only considered legal testimony, he doubtless held, and properly, that these sayings and letters did not legally prove the transfer.

The judgment is affirmed in both cases.