Dolby v. Tingley , 9 Neb. 412 ( 1879 )

Maxwell, Ch. J.

• On the sixth day of July, 1875, Thomas J. H. Dolby commenced an action against R. P. Parshall by attachment in the county court of Lancaster county, Tingley being served with process of garnishment. On the second day of August of that year Tingley appeared and answered: “ I have under my control notes, judgments, and evidences of indebtedness belonging to Parshall in the aggregate of about $2,000, more or less.” The court thereupon made the following order: “ It is ordered that R. R. Tingley, the within named garnishee, keep and retain in his. hands the sum of $450, and $25 to cover costs, to abide the further event of the suit.” Various adjournments of the cause were had until the twentieth day of September of that year, when the ease'was tried ánd judgment rendered in favor of the defendant, Parshall. The plaintiff appealed the cause to the district court, where in February, 1878, judgment was rendered in his favor for the sum of $549.20 and costs. On the second day of March thereafter the district court sustained a motion to require “ Tingley, the garnishee herein, to pay money into court as per Ms answer and order heretofore made.” The money not being paid, the plaintiff brought this action against the garnishee. The defendant herein in his answer alleges:

First. That he was discharged by the judgment for the defendant in the county court.

Second. That, in obedience to the order of the district -court, he, on the fifteenth day of March, 1878, presented to the clerk of the district court the note of J. H. Dolby to N. E. Parshall for about the sum of $492, and therefore he has complied with the order of said court.

Third. That prior to the notice of garnishment Parshall was indebted to him in the sum of $921 and upwards, and the proceeds of the assets were to be applied in payment of the indebtedness due said defendant, and that Parshall is still indebted on the original indebtedness the sum of $525 and upwards, and considerable sums expended in conducting suits for the collection of said assets. The defendant also alleges that he has not been able to collect enough to satisfy his own claim. He also alleges that some of the notes and assets are of no value.

It is unnecessary to notice the reply. On the trial of the cause the plaintiff introduced the judgment against Parshall, and a transcript of the proceedings of the county court, the answer of the garnishee therein, and the order of the court thereon, and also the order on the garnishee in the district court and the assignment to plaintiff, and rested. The defendant then filed a motion for a non-suit. 1. Because the court had no jurisdiction. 2. Because the appeal to the district court did not affect the garnishee. 3. Because the evidence was not sufficient to sustain a judgment. The motion was sustained and the cause dismissed. The plaintiff brings the cause into this court by petition in error.

As to the first objection, that the garnishee was discharged by reason of the county court rendering judgment for the defendant, it is sufficient to say that, had the defendant in that action, Parshall, filed a motion to discharge the attachment which had been sustained, unless the plaintiff had taken the proper steps to have the case reviewed on error, the garnishee would have been discharged. And this without reference to the final judgment in the case. The State v. Cunningham, ante p. 146 But where no steps are taken to dissolve the attachment the garnishee is bound from the time of service until final judgment. Chase v. Foster, 9 Iowa, 429. The law will not justify carelessness or neglect in a garnishee any more than any other suitor. B. & M. R. R. Co. v. Hall, 37 Id., 620. He is supposed to be a disinterested party, and he is not liable for costs beyond those caused by his resistance of the claim against him.

Section 939 of the code provides that: “ If the garnishee appear and answer, and it is discovered on his examination that at or after the service of the order of attachment and notice upon him he was possessed of any property of the defendant, or was indebted to him, the justice may order the delivery of such property, and the payment of the amount owing by the garnishee into court, or may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaintiff with one or more sufficient sureties, to the effect that the amount shall be paid, or the property forthcoming, as the court may direct.” Gen. Stat., 673.

Section 940 provides that: “ If the garnishee fail to appear and answer, or if he. appear and answer, and his disclosure is not satisfactory to the plaintiff, or if he fail to comply with the order of the justice to deliver the property and pay the money owing into court, or give the undertaking required in the preceding section, the plaintiff may proceed against him in an action in his own name, as in other cases,” etc. Gen. Stat, 673.

The county judge should have required the garnishee to give the undertaking required by the statute, but his failure to do so did not discharge the garnishee. The reason why the undertaking was not required probably was because the trial of the cause was set for the next day (August 3d). Had the answer of the garnishee been unsatisfactory, or had he denied all indebtedness, the plaintiff would not thereby be precluded from maintaining an action against him. The nature of the “evidence of indebtedness” held by the defendant is not disclosed. So far as appears it may have consisted of the best class of public securities, readily convertible into money. But until the defendant had collected some portion of the assets or converted the same into money he would not be in default, and there could be no recovery against him under the order of the court. Does the record contain testimony tending to show that he had money belonging to the debtor in his hands? The answer of the defendants states in substance that he had collected about $400 of the assets, and applied the same upon a debt which he claims is due from Parshall to himself. The existence of such a debt is denied in the reply. It therefore devolved on the defendant to establish its existence. This issue the court could not ignore.

Where there is testimony tending to sustain an action, a non-suit should not be granted, as the testimony should be submitted to the jury. In proceedings in attachment a garnishee should only be required to deliver property or pay money on the order of the court where there is a clear admission in his answer that he has such money or property in his possession. If questions of fact are involved as to his liability, the case should not be disposed of in this summary manner.

But the order in this case was to retain a certain amount of money. Section 200 of the Ohio code provides for issuing an execution in all eases where “the garnishee shall admit an indebtedness to the defendant.” The remedy provided by tlie code is by action against the garnishee. And the order, together with the admissions of indebtedness of the garnishee, may be given in evidence upon the trial. But where, as in this case, the garnishee seeks _ to apply the assets collected by him to his own use, the right to make such application, when denied, is a question of fact which must be submitted to the jury. Thé court therefore erred in sustaining the motion for a non-suit.

The judgment of the district court- is reversed, and the cause remanded for further proceedings.

Reversed and remanded.