Tyler v. Coolbaugh , 7 Iowa 474 ( 1859 )

Woodward, J.

One or two remarks upon this proceeding may be proper, before coming to the main question. It does not appear upon what rule of practice, Isaac Lombard comes into the case. He probably regárds himself as a- third person, claiming the property attached, as has sometimes been done in regard to other species of personal property, but there is no entry of record in relation to him, and he does not appear to have been regarded by the court.

The defendant does not object to the form or manner of the issue presented by the plaintiff; and yet it is worthy of the suggestion, and may be important to the garnishee, to ask, what was the issue wdiich was tried % The garnishees do not deny owing the defendant, so that the plaintiff coidd join issue upon that, but they state the facts, leaving a case for the court to determine, whether they owed him; but there is no decision of the court upon the facts. In this position of the case, the plaintiff professes to make an issue, upon the answer, by averring that the garnishees do owe the defendant. He seems to admit, tacitly, that this answer does not show an indebtedness, and that upon it the garnishees cannot be charged; but does he mean to aver that they do not hold that money for 0. C. L., as an agent; or that, besides this, they hold money of his, or are indebted to him ?

This question is important to the garnishees, to the extent of that money, for if the issue should be found against them, or they be charged, upon the latter sense of the issue, they would be in a position to pay that sum twice. The propriety of the issue is .very doubtful, yet, as it has not been objected to, it will not be disturbed, but for the sake of the garnishees, a construction should be put upon the issue which will save them a double payment. The true intent of the issue is indicated and determined by the question made here. The garnishees offered O. C. Lombard as a witness, to prove that he was the agent of Isaac L., and that the three hundred and thirty dollars were the property of said Isaac, and that he (O. C.), deposited it as such agent.

O. C. Lombard is the execution debtor. ■ Either the money deposited by him belongs to Isaac L., or it will go to the payment of 0. C.’s debt. A witness thus situated, has usually been regarded as interested to subject the property to the payment of his debt — to relieve himself of his liability; and such it must be, if he has any, for, clearly he has none to throw it into the hands of a third person. It has been sometimes considered as balanced, and if so,, he would be a competent witness. The case is similar, in substance to that of an execution defendant, where a third person claims the property levied on; and in that case, the defendant has been held admissible as a witness.

We are inclined to regard the legal interest of the witness as tending in favor of the attaching plaintiff, and therefore hold him competent, when called by the garnishee. Consequently, in excluding him, the court was in error, and the judgment is reversed and the cause remanded. Adams v. Foley et al., 4 Iowa, 44.