Case v. Ingersoll , 7 Kan. 367 ( 1871 )

The opinion of the court was delivered by

Valentine, J.:

A judgment was rendered before a justice of the peace of Labette county in favor of Margaret Ingersoll, the defendant in error, and against W. M. Johnson, (assignor of plaintiff in error,) for $200 and costs; a transcript of the judgment was filed in the office of the clerk of the district court of said county; execution was issued thereon and returned^ unsatisfied; an affidavit of J. D. McCue, one of the attorneys of Margaret Ingersoll was filed in said clerk’s office, setting forth that he had good reason to believe and did believe that Nelson Case (the plaintiff in error) had property of and was also indebted to said ~W. M. Johnson; an order of garnishment was issued and served on said Case; written interrogatories were also filed in said clerk’s office, and served on said Case. In answer to said interrogatories said Case filed the following:

“ 1. I have both personal and real property under my control which was assigned to me by the said W. M. Johnson for the benefit of his creditors. Said real property consists of town lots in Oswego, and interests in buildings and lots. Said personal property consists of said office furniture, and a few choses in action.

“ 2. I am not indebted to said W. M. Johnson in any sum whatever.

“ 8. The said assignment from W. M. Johnson is of all his property, personal and real, not exempt by law from attachment, for the benefit of all his creditors in proportion to their respective claims. The appraised value of said property is about $11,500. Said assignment was made April 21st, 1870.”

Upon this answer the court below found “that said assignment was fraudulent and void as against the rights ■of said plaintiff,” and ordered and adjudged that said Case pay said judgment. No copy of the assignment is given with the answers of the garnishee. If the evidence submitted to the court below showed that said assignment was void for any reason, then of course the judgment or rather order of the court below was correct; but if it did not so show, then the order war erroneous. There does not. seem to have been any evidence submitted to the court below except the said answers of the said garnishee. In fact, under the statutes no other evidence could be submitted except by consent of parties: (Civil code, Gen. Stat., 728, §503; id., 669, §215; id., 670, §218; Drake on Attachment, § 659, and cases there cited.) The ■only remedy of the plaintiff, if the garnishee failed to answer, or if his answers were not satisfactory, was to sne the garnishee; (civil code, § 219.) His remedy was not to introduce other evidence than that of the garnishee to show that the garnishee had property of or was owing the judgment-debtor; but it was to commence an original and independent action. For these reasons, if reasons were necessary, we cannot presume, against the record, that any evidence except the answers of the garnishee was heard or examined by the court below. We think the court below erred. An assignment of property for the benefit of creditors is not necessarily and per se void. (Gen. Stat., ch. 6,p. 94, et seq.) And there is nothing in the answers of said garnishee that shows that said assignment is void.

It seems scarcely necessary for us to say, that property held by an assignee, under a valid assignment for the benefit of creditors, is not subject to attachment or garnishment for the assignor’s debts.

We take no notice of “Exhibit B,” appended to the record, but which does not seem to form any part of the record. It purports to be a copy of a deed of assignment from W. M.-Johnson and wife to Nelson Case; but it is-not in any manner authenticated, and does not seem to form any part of the case. ^*

The judgment and order of the court below against Nelson Case, garnishee, is reversed, and the case remanded for further proceedings.

All the Justices concurring.