Mansfield v. Honduras Co. , 1896 Ill. App. LEXIS 739 ( 1896 )

Mr. Justice Waterman

delivered the opinion oe the Court.

It is urged that the filing of a written traverse is not made a requirement to the formation of an .issue by the statute. The provisions of the statute touching this point are found in section 7 of the garnishment act (Chap. 62, Hurd’s Rev. Stat. 1895, p. 830). “ When the plaintiff in any garnishee proceeding shall allege that any garnishee served with process, or appearing before any court, hath not truly discovered the lands, tenements, goods, chattels, moneys, choses in action, credits and effects, or if before a justice of the peace, such personal effects of the defendant in the attachment suit or judgment, and the value thereof, in his possession, custody or charge, or from him due and owing to the defendant at the time of the service of the writ, or at any time after, or which shall or may thereafter become dne, the court or justice of the peace shall immediately (unless the case shall for good cause be continued) proceed to try such cause, as against such garnishee, without the formality of pleading.”

The defendant in error, plaintiff below, insists that it is sufficient that the required allegation that the garnishee has not truly discovered be oral; that no written traverse of the answer of the garnishee is necessary in a court of record.

The rule in this State is that the allegations of the parties, the pleadings, by which the issue is made and upon which the cause is tried, must, in courts of record, be in writing.

The statute as to garnishment relieves the plaintiff from the necessity of making a formal pleading; that is, such a pleading as in ordinary actions is required; form is dispensed with; it is sufficient to allege that the garnishee has not truly disclosed, but a written traverse is required in a court of record.

The recitals in the record, that issue was joined, can not prevail over the fact appearing by the record, that no traverse of the answer was made. Reynolds v. Anspach, 14 Ill. App. 38; Adams v. Neeley, 15 Ill. 380; Seavey v. Rogers, 69 Ill. 534; Waggoner v. Green et al., 40 Ill. App. 648.

The judgment of the Superior Court is reversed and the cause remanded.