DocketNumber: No. 17,355
Citation Numbers: 94 Neb. 606
Judges: Barnes, Fawcett, Hamer, Letton
Filed Date: 11/12/1913
Status: Precedential
Modified Date: 7/20/2022
This is an action against garnishees on account of unsatisfactory answers in garnishment proceedings.’ The appellant is a judgment creditor of C. J. Schwartz. On August BO, 1909, an execution was issued on the judgment, which was returned unsatisfied. On the same day an affidavit in garnishment was filed, and a summons in garnishment issued and served on the Oak Creek Valley Bank and Jul Petermichel as garnishees. On November 32, 1909, the bank and Petermichel appeared as directed, and answered as garnishees that they had no money or property of C. J. Schwartz in their possession or under .heir control. On August 28, 1909, C. J. Schwartz, who
The sheriff testified that he heard one side of the conversation which Schwartz had over the telephone Avith Petermicliel and Mrs. Schwartz; that Schwartz told his wife that he had been arrested and would have to lie in jail unless he was able to give a bond; that he had spoken
Plaintiff then called Mrs. Schwartz as a witness, endeavored to elicit by a series of questions, and offered to prove, that she had the telephone conversation with Schwartz with regard to furnishing a bond, and that at his request she deposited in the hands of Petermichel $500 of his money. Objections to the questions and to the offer of proof were made on the ground that the wife was incompetent to testify against her husband; that the transaction and conversation was a communication between husband and wife, to which she is incompetent to testify during the time that the marriage relation existed. The objection and the offer to prove were sustained, to which plaintiff excepted. No further evidence was produced, and the court found for defendants and dismissed the case.
.The answer of the garnishees alleges that the answers made by them in the proceedings were truthful, and that the district court made no order upon them in the case. The answer of Mrs. Schwartz pleads that she is the owner of the $500; that the money was her separate estate and did not come to her from her husband; and that the indebtedness of the other defendants created by depositing the money is due to her alone. Plaintiff’s reply denied the affirmative allegations in the answer.
The appellant maintains that the uncontradicted evidence shows that the money belongs to C. J. Schwartz. He also relies upon the principle that transactions between husband and wife by which creditors are prevented from collecting their just dues will be scrutinized closely and proof of their bona fieles required. First Nat. Bank v. Bartlett, 8 Neb. 319; Lipscomb v. Lyon, 19 Neb. 511; Hill v. Fouse, 32 Neb. 637.
Schwartz did not request that his wife deposit her money as security. He merely directed her to “go into the back room and get $500 out of the money * * *
Having reached this conclusion, it is unnecessary to consider the question as to whether Mrs. Schwartz was a competent witness.
Appellant takes the position that this is an action in equity which this court tries de novo, and that if we find the evidence is sufficient we should proceed' to enter a decree in its favor. In this we think he is mistaken. An action against a garnishee for a false or unsatisfactory answer in proceedings in garnishment merely is a suit at law ancillary to the main case in which the judgment is rendered. Perhaps upon a new trial Mrs. Schwartz may be able to prove by sufficient competent evidence that the money actually belonged to her. For these reasons, the judgment of the district court is reversed and the cause remanded for further proceedings. Reversed.