Malone v. Riedenauer

Opinion by

Mr. Justice Mestrezat,

This was an attachment execution issued on a judgment against the defendant, the Stewart Contracting Company, and Louis P. Riedenauer was summoned as garnishee. To the interrogatories filed by the plaintiff, the garnishee answered that he had no property or effects of the defendant company in his possession. The plaintiff having entered a rule to plead, the garnishee pleaded nulla bona, set-off, and payment with leave, etc.

On the trial of the cause in the common pleas, the plaintiff put in evidence the judgment against the, defendant and introduced testimony to establish an indebtedness of the garnishee to the judgment debtor. This tended to show that the garnishee had received from $5,000 to $6,000 funds of the defendant at the time of the service of the writ of attachment. The garnishee testified that he was not indebted to the judgment debtor in any sum whatever at the service of the writ or since and offered evidence to show a set-off of nearly $8,000 against the funds of the defendant company which had been received by him. The jury rendered a “verdict for the plaintiff of $3,427; and also that there was $6,000 in the hands of Louis P. Riedenauer belonging to the Stewart Contracting Company on January 4,1909.” Judgment having been entered on the verdict, the garnishee has taken this appeal.

While there are fifteen assignments and most of them should be sustained, we will confine our consideration of the case to the first two which allege error in the charge of the court. The learned trial judge misapprehended the issues raised by the pleadings and the familiar and uniform practice in the trial of such causes established by all our cases.' The issuable pleas filed by the garnishee required the plaintiff to prove on the trial the property and effects of the judgment debtor in the hands of the garnishee subject to the attachment. The learned counsel of the plaintiff recognized the burden resting upon his client and attempted to meet it. The garnishee offered evidence in support of his pleas. The issues thus raised and supported by evidence should have been submitted to the jury with proper instructions as to the law applicable to the facts. The learned judge, however, instructed the jury to find a verdict for the plaintiff and to determine how much money of the defendant company was in the hands of the garnishee at the time the writ went out, which he held to be the only question in the case. He did not hold that the evidence was not sufficient in law to sustain the pleas, but instructed the jury to return a verdict against the garnishee and that “the court hereafter will control its process so that the garnishee will be protected as surety on the bonds; that cannot be determined now by you, it must be determined in each case as it arises.” This was manifest error, and, as stated above, disclosed a misapprehension of the issues raised by the pleadings. It was incumbent on the plaintiff to show funds or property of the judgment debtor in the garnishee’s hands subject to the attachment. Failing in this, the verdict ought to have been for the garnishee. If there was evidence to go to the jury on the question, which apparently was conceded by the court, the jury should have been permitted then and there to decide it. It was a question of fact raised by the pleadings and the court could not decide it by controlling the process issued on a judgment against the garnishee. If, in the opinion of the court, the evidence was insufficient to support the defense set up by the garnishee, the jury should have been so instructed, and, funds adequate to meet the claim having been shown to be in the garnishee’s hands, the verdict would be for the plaintiff and against the garnishee. That would have determined the issues which the jury were sworn to try and would have fixed the garnishee for the debt due the plaintiff by the judgment debtor. This was not a case for an interpleader. The garnishee was not a stakeholder, but denied that the funds of the defendant company which had passed into his hands belonged to the defendant at the date of the service of the writ. That was the issue which should have been determined on the trial and which the court could not determine by controlling the verdict or judgment in the plaintiff’s favor against the garnishee.

The first and second assignments of error are sustained, and the judgment is reversed with a venire facias de novo.