Kemp v. Northern Trust Co.

Mr. Presiding Justice Waterman

delivered the opinion of the court.

The testimony admitted by the court below to show that the officer’s return on his process was incorrect should not have been admitted. An officer is bound by his return. If it is erroneous, or, as it is spoken of in the books, is a false return, he is ordinarily entitled to correct it. No application was made in the court below by the officer to correct his return. It still stands of record that he served the garnishee process upon the defendant on the morning of January 3d. The rights of the parties under such process are fixed by his return. If it be false, as before stated, ordinarily he may correct it, and at all events he is liable for the truthfulness of his return and the consequences of a false return. Murphree on Sheriffs, sections 867, 868, 873, 875, 876, 878.

The testimony upon the part of the plaintiff shows clearly that the check was cashed by Farwell & Company between eight and nine o’clock on the morning of January 2d. From the time of the cashing of such check there was no indebtedness by the Northern Trust Company to Sticks & Company.

It is argued by the defendant that the time at which it appears from the evidence the check was deposited by Far-well & Company shows that it could not have reached their hands until after ten o’clock on the morning of January 2d. The inference thus sought to be drawn can not prevail over the uncontradicted testimony of two witnesses to the effect that the check was cashed between eight and nine o’clock upon the morning of January 2d. Such being the case, the judgment of the court below must be reversed as under the admissible evidence the plaintiff ought to have had a judgment for $331.30, the entire amount to the credit of Bender when the check was presented for payment.

In this state a check is an assignable instrument and suit may be brought thereon by any holder to whom it has been assigned in due course of business.

Upon another trial of this cause the question may arise whether a bank is subject to garnishment upon claims against each and every person who may at any time unknown to it have a check upon it, drawn by a depositor having to his credit in the bank funds equal to the amount of the check-, and whether each person who advances money upon a check or takes it in payment of an indebtedness does so subject to any garnishment of the bank upon which it is drawn upon a claim against the person transferring the check or any previous stotikholder thereof. As to this we express no opinion, because such question has not been argued before the court.

The judgment of the Superior Court is reversed and the cause remanded.