Wilson v. Burney , 8 Neb. 39 ( 1878 )

Maxwell, Ch. J.

On the seventh day of April, 1876, Humphrey Brothers commenced an action before a justice of the peace against Horace Taylor, E. A. Berry, and the defendant, and on the thirteenth of that month recovered judgment against Taylor as principal, and Berry and Burney as sureties, for the sum of $69.16 and costs of suit. On the same day an execution was issued on said judgment and returned by the sheriff: “ I hereby certify that I cannot find any chattel property belonging to the within named defendants whereon to levy this writ.”

On the same day the plaintiff filed an affidavit setting forth that they had good reason to believe “ that the firm of Wilson & Phillips were indebted to the defendant, Horace Taylor, in a certain sum of money subject to application on the judgment.”

Summons was thereupon issued requiring said garnishees to appear and answer under oath touching their indebtedness to Horace Taylor. On the next day one of the garnishees appeared and the examination was continued until the twenty-second of that month. - At the time fixed by the adjournment, Wilson appeared and filed an answer and was examined. The justice thereupon made the following order: “ "Whereupon it is ordered by me that the said garnishee, Phillips and "Wilson, pay into this court the sum of $85.00, or so much thereof as will satisfy the above judgment and costs of suit in full, and that they be released from obligation to the defendant in that amount.” Phillips and "Wilson did not appeal from this order, and failed to pay the money into court.

On the twelfth day of October, 1876, an execution was issued on the original judgment, and the amount due thereon was paid by the defendant herein as surety for Taylor. The surety took an assignment of the judgment to himself, and brought an action against the plaintiffs herein as garnishees. On the trial of the cause judgment was rendered in his favor, to reverse which the cause is brought into this court by petition in error.

The proceedings in this case were instituted under section 244 of the code of civil procedure. The return of the sheriff shows that there was no property of the defendant’s in the original action upon which to levy. Eor the purposes of this action, the return of the officer upon the execution is conclusive. Jones v. Green et al., 1 Wallace, 381. Service in the proceedings in garnishment was had upon the plaintiffs. "Wilson answered, denying substantially being indebted to Taylor, but his answers to the interrogatories as to his indebtedness to Taylor are of a very unsatisfactory character, and justified the court in finding that the plaintiffs were indebted as claimed, and in making the order requiring- the payment into court. But as no appeal was taken by the plaintiffs in that case from the order of the justice, it must be held as conclusive and cannot be enquired into in this proceeding.

The only remaining question to be considered is, whether the surety is entitled to the securities held by the creditor. The principle is well settled that upon the payment of the debt by tbe surety, be is entitled to tbe securities held by tbe creditor against tbe principal debtor, and to stand in bis shoes, and it can make no difference tbat tbe security is in tbe form of an order upon garnishees to pay money into court. It follows that the defendant, being entitled to be subrogated to tbe creditor’s rights in tbe premises, tbe judgment of tbe court below must be affirmed.

Judgment aeeirmed¡