Seamon v. Bank of Berkeley ( 1870 )

Maxwell, J.

The Bank of Berkeley obtained a judgment in the circuit court of Berkeley county, against the Bank of the Valley in Virginia, for 4000 dollars and upwards, with interest and costs, which judgment was after-wards affirmed in this court. After the said judgment was so affirmed, and the judgment of this court certified to the circuit court of Berkeley county, a summons on a suggestion was sued out of the clerk’s office of the said circuit court of Berkeley county, against William B. Colston and others, and served on the said Colston.

During the time the suit was pending, and before judgment was rendered against the Bank of the Valley in Virginia, an attachment was sued out and served on Richard D. Seamon, as garnishee. It appears that on the 23d day of March, 1869, which was the first day of the March term of the court, Colston and Seamon both appeared and offered to file their separate answers in writing, under oath, and that no objection was made to the filing of said answers, and they were accordingly filed; and it further appears that on the 25th day of the same month on motion of the Bank of Berkeley, the said answers were struck from the files, and the said Colston and Seamon ordered to appear in court and answer orally, of which order it does not appear they had notice. To which ruling of the court striking the said answers from the files, the said Colston and Seamon objected and excepted.

The court afterwards, on the 3d day of April, proceeded to hear evidence as to the indebtedness of the said parties to the Bank of the Valley in Virginia, and rendered judgments against them respectively.

It is insisted here that it was error to strike the said answers from the files after they had been allowed to be filed under the circumstances.

The proceedings against Colston was under chapter 188 of the Code of Virginia, 1860. The llth section of the chapter provides for a' suggestion, and summons thereon. The 12th section provides that the person summoned shall be examined on oath. The 13th section provides that if such person, after being served with the summons twenty days, fail to appear, or if it be suggested that he has not fully disclosed his liability, the proceedings shall be according to the 18th and 19th sections of chapter 151, mutatis mutandis. The 12th section does not contemplate a written answer, but that the person summoned shall be examined on oath. But I have no doubt that a plaintiff may waive his right to examine a party summoned, by allowing him to file a written answer.

Under the circumstances of this case, the answer of Cols-ton must be regarded as accepted by the plaintiff!, and could not afterwards be struck' out, though if not satisfactory, a further answer might have been required. If the plaintiff; had suggested that Colston had not fully disclosed his liability, the proceedings should have been according to the 19th section of chapter 151.

The proceedings to compel the answer of Seamon was under chapter 151 of the samé Code, and the answer of Seamon was as improperly struck out as was that of Colston. The proceedings against both Colston and Seamen should have been the same under the 19th section of chapter 151, according to which it is provided that when it is suggested by the plaintiff, that the garnishee has not fully disclosed the debts due by him to; or effects in his hands of, the defendant, the court shall cause a jury to be impaneled to enquire as to such debts and effects.

The court should, therefore, instead of striking the answers out, have required the defendants to answer further, if desired by the plaintiff, but if further answers were not desired, upon a suggestion that the defendants had not fully disclosed, the court should have impaneled a jury to try the question.

This brings us to the question of greatest interest in the case, and that is, whether or not the notes of the Bank of the Valley in Virginia, purchased and procured by Colston and Seamon after proceedings were commenced against them, can be set off against, or paid upon, the debts due by them to the said bank.

This question has been examined in the case of Gettinger vs. The Farmers' Bank of the Valley in Virginia, at the present term of this court, in which it was held that the note» of the said bank, procured after attachment levied, could not be set off against, or paid upon, a debt due the bank» That case then, is conclusive against the right claimed by Colston and Seamon to. set off the notes held by them.

The judgment complained of will, therefore, have to’ be reversed, with costs to the plaintiffs in error, and the cause remanded for further proceedings t©> be had therein, in conformity to the foregoing opinion.

The remaining judges, concurred with Maxwell, J»

JuBSMENT REVERSEB»,