J. M. Sawyer & Co. v. Webb ( 1857 )

Weight C. J.

This judgment must be reversed. If it should be admitted that the failure of the garnishee to answer before the commissioner, would subject him to the same consequences as if the refusal had taken place in open court, it is to be remarked that, in this case, there is nothing to show that the commissioner required or decided .that he should answer. It is true, that he refused to answer when the interrogatory was propounded, but for this refusal alone, he would certainly not be liable, until it was determined that the question was proper, and that he was bound to answer the same.

But the more important consideration is, that after the court had determined that the question was proper, the garnishee should have had an opportunity to respond. Before its pertinency was determined upon, he expressed a willingness to answer, if the court should so adjudge. After he was required to answer, he again proposed to comply, and this right was refused him. It was never intended by our law, that a garnishee, in this summary method, should be, in effect, denied a fair hearing. He has a right to have the correctness of a proposed inquiry, adjudicated by the court, and is not bound to submit to any and every conceivable investigation, without objection; or, if he objects, become hable to pay the entire debt in the principal action, if his objection shall prove to be unfounded. It was the duty of the court, to either recommit the whole matter for further investigation to the commissioner, or to direct the answer to be taken in open court.

Judgment reversed.