Lasley v. Sisloff , 8 Miss. 157 ( 1843 )

Per Curiam.

The plaintiff in error was garnisheed as a debtor of William L. Cullen, against whom defendants in error had recovered judgment, they having made affidavit that Cullen had no property on which an execution could be levied. The plaintiff in error answered, denying any indebtedness; and the defendants alleged that he had not made a true discovery, whereupon an issue was made up, and the case submitted to a jury. On the trial, the plaintiff’s counsel offered to read his answer as evidence, which was objected to, and the objection sustained.

The provision of the statute does not seem to contemplate that the answer shall be used in any way, when its truth is denied. The inquiry, then, is, what is the true amount due from the garnishee, or what effects has he in his hands? And this inquiry arises only on the allegation that the garnishee has not discovered the true amount. It then becomes a question between the judgment creditor and the garnishee, the one being bound to make good his allegation, and the other being at liberty to resist by such competent proof as he would be at liberty to use in other cases. But to exonerate himself he could not testify; and, for the same reason, his answer cannot be used. If the statute had not given the power to dispute its truth, then the rule applicable to answers on discovery sought, might also apply here; but the plaintiff has the privilege of showing it tó be untrue, which he cannot do in ordinary cases of discovery. By virtue of the process of garnishment, the judgment creditor is entitled to receive what the garnishee owes. It has the effect to transfer the debt, and the garnishee cannot defeat the right of recovery by his own oath.

The plaintiff in error, by his counsel, requested the court to charge the jury that the judgment creditor could not recover against him, unless he produced in evidence the original judgment. Such evidence would have been foreign to the inquiry. The jury had but one fact to find, to wit: what amount did Lasley owe Cullen. If they found that he owed him any thing, then it was with the court to pronounce judgment; and it was only for the court to be satisfied that the creditor was entitled to a judgment for the amount found by the jury. " The court was to render judgment just as though the garnishee had admitted an indebtedness by his answer. Whether the creditor was entitled to judgment on the facts admitted or found, was a question of law.

Judgment affirmed.