Upshaw v. Carbelt ( 1871 )

Opinion op the Court by

Judge Hardin :

If the appellant, was, as is insisted, only before tbe court as an ordinary garnishee, be bad a right, under section 245 of tbe Civil Code, to appear in person and be examined orally, or answer in writing, and if be adopted tbe latter mode, be should not have been compelled to appear in person, after tbe transfer of tbe case to equity, to undergo an examination before tbe court, unless be was in contempt of court for failing to make a sufficient answer. But as tbe appellant was in this case formally made a defendant in tbe action, and properly so as tbe court decided on the demurrer, and tbe case was on tbe plaintiff’s motion, transferred to equity, so far as appellant was concerned, the case should have remained for preparation and trial as any other suit in equity according to tbe provision of tbe code, and if tbe testimony of tbe appellant was desired it should have been obtained by bis deposition or upon interrogatories before tbe final bearing, and it was both irregular and premature to force him into court to give oral testimony, and try tbe case on tbe result of that examination before tbe action stood for trial according to tbe rules of equity practiced and within the time allowed to parties for preparation.

Wherefore tbe judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.