The Garnishee, his Rights and Liabilities.

down in the statute categorically, but may go on and state facts and circumstances, and leave the question of his liability to the court. Bebb v. Preston, 1 Iowa, 460; S. C., 3 Ibid. 325.

44. Question for jury. While it is true that the truth or falsity of the answer is the issue to be tried by the jury, yet it is not the truth or falsity of any one proposition, nor of any part of the answer in particular, but the question is as to the truth or falsity of the leading ultimate denial of being indebted to, or having no prop. erty of defendant in his hands. Bebb v. Preston, 1 Iowa, 460.

45. Notice. The garnishee's answer brings him into court, and after it is made and before it is disposed of, he must take notice, as a party to an action, of every thing that is done, and follow it on change of venue. Chase v. Foster, garnishee, 9 Iowa, 429.

owing money to another, or as having property of another in his hands, and in either case without fault or blame; and he is supposed to stand indifferent as to who shall have the money or property. Walters v. Washington Ins. Co., 1 Iowa, 404; Williams & Cunningham v. Housel, supra. 54. A garnishee is never, except by his own carelessness or negligence, to be placed in a worse situation than he would occupy if the attachment or execution defendant were himself prosecuting his claim against him. Burton & Stapleton v. District Township of Warren, 11 Iowa, 166; Smith, Trogood & Co. v. Clarke & Henley, 9 Ibid. 241; McCord v. Beatley, 12 Ibid. 299.

55. A garnishee is not required, upon service of notice, to tender or bring into court the money or property in his hands liable to the garnishment; and does not by retaining the same render himself liable for costs. He is rendered

IV. THE GARNISHEE, HIS RIGHTS AND LIABIL- liable only by a refusal to answer, or by con

ITIES.

46. Liability of garnishee. To charge a garnishee, his liability must be affirmatively shown. Morse v. Marshall, garnishee, 22 Iowa, 290.

47. Answer. A garnishee will not be charged on his answer alone, unless it contains a clear admission of a debt due to, or the possession of money or attachable property of, the defendant, Ibid.

48. Doubt. And if it be left in reasonable doubt whether he is chargeable or not, he is entitled to a judgment in his favor. Ibid.

49. The liability of the garnishee must be affirmatively shown by the evidence, or clearly appear from his answer, or he will not be held. Farwell & Co. v. Howell & Co., 26 Iowa, 381.

50. To render the garnishee liable to the creditor, it must be made to appear that he was indebted to the defendant, or had property, etc., at the time or subsequent to the service of the garnishee notice. Weire v. The City of Davenport et al., 11 Iowa, 49.

duct seeking to avoid a fair investigation of his liability to the defendant. Randolph & Leslie v. Heaslip, 11 Iowa, 37.

56. In the process of garnishment the gar. nishee is not presumed to be indebted to the defendant. The burden of showing his liability is upon the plaintiff; and this is done either upon his answer or by joining issues on the answer and by showing it by other proof. The presumption is against the garnishee only as to matters which he is bound to know, to ascertain and to state, and which he leaves doubtful or unexplained. Williams & Cunningham v. Housel, garnishee, 2 Iowa, 154; Wilson v. Albright, 2 G. Gr. 125.

57. Where a garnishee answered "At the time of the service of the garnishee notice in this action, I had under my control property of the defendant to the amount of probably $2,000, it may have been more or less. This property had been previously attached at the suit of A v. B, and released by a bond on lia. which I was surety. To secure me against liaWilbility on such bond, B executed to me a chattel mortgage on said property, with power at any 52. The garnishee can be charged only to the time to take the same into my possession. Preextent of his liability to the defendant. Wil-vious to my being garnisheed in this suit I had liams & Cunningham v. Housel, garnishee, 2 Iowa, 154; Bebb v. Preston, 1 Ibid. 460; Fifield v. Wood, garnishee, 9 Ibid. 249.

51. The garnishee is under no greater bility to his garnishor than to his creditor. son v. Albright, 2 G. Gr. 125.

53. Primarily a garnishee is taken to be an innocent person who is called into court as

taken possession of said property and was sell. ing the same under a subsequent agreement between said B and myself. Since the time of my garnishment in this action the said property was attached by C, sheriff, and taken from my

The Garnishee, his Rights and Liabilities.

possession. The above-mentioned suit of A v. B, in which the said property was attached, was brought for about $1,000 and costs," it was held, that the garnishee was not bound by the statement of the costs or by his estimate of the property. Williams & Cunningham v. Housel, garnishee, 2 Iowa, 154.

Held, that the court was justified in rendering judgment against the garnishee, to be paid by the estate. Morgan v. McLaren, 4 G. Gr. 536. 63. Effect of default. When a garnishee is called and fails to appear, a default may be entered against him, though no interrogatories, as contemplated by the statute, have been pre58. Agency presumed. Where garnishees pared and propounded by the plaintiff. It is were in possession of goods under a chattel not necessary to submit such interrogatories bemortgage executed before the garnishment by fore the appearance of the garnishee. Parmenone claiming to be their debtor's agent, held, ter v. Childs; Noble v. The same; Eberman v. that the authority of the agent will be presumed The same, 12 Iowa, 22. in the absence of its disaffirmance by his princi64. Change of venue. Where the garnishee pal. Farwell v. Howard, 26 Iowa, 381. appeared and answered the general interrogato59. When chargeable with interest. A gar-ries, and at the next term the venue was changed nishee is not chargeable with interest upon on plaintiff's motion, to another county, where a funds in his hands from the time of garnish-replication, setting up new matter, was filed, to ment, unless he appears as a litigant, or it is made to appear that he has used said funds. Moore v. Lowrey, 25 Iowa, 336.

which there was no rejoinder (no further notice having been given to the garnishee); Held, that the garnishee was in default, and that as he did not object in the court below, he cannot in this court. Chase v. Foster, garnishee, 9 Iowa,

429.

65. Garnishee's lien. A garnishee holding property of the attachment defendant, upon which he has a lien, has a right to hold the same until his lien is discharged. It is error to render an absolute judgment against such a garnishee upon his failure to deliver the prop

60. Assignable mortgage. A garnishee cannot be made liable on a mortgage which is not negotiable but is assignable, unless the mortgage is produced, or the garnishee is completely exonerated or indemnified from liability thereon after he may have satisfied the judgment. (Rev. 1860, 3211.*) Timmons v. Johnson, 15 Iowa, 23. 61. Mortgagee of personal property. A mortgagee of personal property which has never come into his possession is not bound, after gar-erty to the sheriff as provided by sections 1891 nishment by an attaching creditor of the mortgagor, to take possession of the property for the benefit of such creditor, and cannot, in the absence of fraud or collusion, be held liable for the same, though it exceeded in value the amount of his mortgage. Curtis v. Raymond Bros. & Co., 29 Iowa, 52.

62. Executor. Where C., as executor of the estate of P., was garnished, and answered that P. was indebted to M. K. & Co. in the sum of $140; that M. had verbally contracted to buy two lots of P., and to pay $300 for them, half in printing and half in cash; that the bill of M. K. & Co. was to go in part payment; that "in case the balance of said purchase-money is not paid, and I should conclude to rescind the contract and receive back the two lots, then the estate will be owing about the amount of $140.

*Reprinted as section 2990, Code of 1873, and as follows:

SEC. 3211. The garnishee shall not be made liable on a debt due by negotiable or assignable paper, unless such paper is delivered, or the garnishee completely exonerated or indemnified from all liability thereon, after he may have satisfied the judgment.

and 1893 of the Code of 1851. Smith, Twogood & Co. v. Clarke & Henley, garnishees, 9 Iowa, 241.

56. What garnishee may be required to disclose. A garnishee may be required to disclose what he knows, both in regard to his own indebtedness and the indebtedness of other persons to the attachment defendant; but the answer binds no one but the party making it. Bean v. Barney, Scott & Co., 10 Iowa, 498; Bebb v. Preston, 1 Ibid. 460.

67. Negligent garnishee. The law will not protect a negligent garnishee, especially when such negligence may result in injury to a bona fide creditor. Houston v. Wolcott & Co., 7 Iowa, 173, and see Large v. Moore, 17 Ibid. 258; Fogg v. Parker, 11 Ibid. 18.

68. Where a garnishee by his negligence suffers two judgments to be rendered against him for the same indebtedness, and he voluntarily pays the last one, the law will not protect him nor will equity relieve him from the conse quences of his neglect, unless there is fraud, accident, or mistake. Ibid.

69. Maker of promissory note: pleading. ment proceeding, is not affected by garnishment The pendency of a garnishment proceeding of the debtor after the date of such assignment; against the maker of a promissory note does and the assignee may intervene in the garnishnot constitute matter for a plea in bar to a re- ment proceeding for the purpose of asserting covery on the note in a suit by an assignee his right as against the plaintiff in the attachthereof, who received it after due and after ment. Easley v. Gibbs et al., 29 Iowa, 129. garnishment of the maker. But such a defense may be pleaded in abatement; and the issue thereon should be submitted to the jury, that their verdict and judgment may be distinguished from those upon matter pleaded in bar (Revision, § 3124; Code of 1873, § 2851). Clise v. Freeborne, 27 Iowa, 280.

70. effect of judgment. When the makers of a note, payable to A. B. alone, were summoned as garnishees of the payee, and as such admitted their liability to the payee, upon which judgment was rendered, it was held that such judgment did not discharge them as to their liability on the note in the hands of an assignee. Commissioners of Jefferson County v. For et al., Mor. 48.

75. In a proceeding of this character, the answer of the garnishee in the garnishment proceeding, or to the petition of intervention, cannot properly be considered as evidence against the assignee who thus intervenes. Ibid.

76. Purchaser with notice. The rights of a purchaser of a garnisheed claim, with notice, discussed and determined. Burton & Stapleton v. District Township of Warren, 11 Iowa, 166.

V. RIGHTS OF ORIGINAL DEFENDANT. 77. Right to object to judgment against garnishee. When a party garnished is the debtor of the original defendant, and answers confessing an indebtedness, the original defendant may make any objection to judgment being rendered 71. Paying debt after notice. A mortgagee against the garnishee, which goes to show that of chattels in possession, after being garnished the indebtedness is exempt from execution or by a creditor of the mortgagor, paid the accrued attachment, or that the judgment is satisfied, rent for the storehouse in which the goods had or any other defense of a like nature; but he been kept. Held, that as the landlord's lien cannot interpose the objection to a judgment could have been enforced against the goods in against the garnishee, that the garnishee is not the mortgagee's hands, the amount so paid liable to the process of garnishment. Wales & should have been credited him, as against the Son v. The City of Muscatine, garnishee, 4 Iowa, garnisheeing creditor. Doane & Co. v. Garret-302; Stockton v. The City of Burlington, 4 G. son, 24 Iowa, 351.

72. Effect of garnishment. Until an order is entered discharging the garnishee, he should refuse payment to his creditor of any money or property subject to the garnishee proceeding; if he does pay, it is at his own risk. Hughes v. Monty, 24 Iowa, 499.

73. Payment after service. A garnishee cannot pay over money to the defendant after garnishment, though defendant receive it as agent of, and in payment of a note given to, the defendant's son, for property purchased of the father, but which, it was afterward claimed, belonged to the son, if in fact the property belonged to the father, and the use of the son's name was merely to defraud defendant's creditors, and the garnishee knew that the object of the garnishment was to reach this money. Kesler v. St. John et al., 22 Iowa, 565.

74. Assignment of debt: intervention: evidence. The bona fide assignment to a third party of a debt by the defendant in an attach

Gr. 84.

78. The objection that a party garnished is exempt from the process of garnishment, is a privilege which the garnishee alone can assert.

Judgment against Garnishee.

it is not shown but that the evidence established 89. He may file an answer to the interroga. the joint liability of the garnishees. Boyd v. Rutledge, 25 Iowa, 271.

Judgment against Garnishee

Iowa, 498; Barton v. Smith, 7 Ibid. 85; Toll v.
Knight, 15 Ibid. 370.

97. No judgment can be rendered against a garnishee until judgment is recovered against the principal debtor; and in setting up a prior garnishment as a defense to an action on a promissory note, the garnishee should show that a judgment has been recovered against the principal defendant in the action, in which he was garnished. Barton v. Smith, 7 Iowa, 85.

98. A judgment against a garnishee should not exceed that against the judgment defendant, including the costs thereof. Timmons v. Johnson, 15 Iowa, 23; Toll v. Knight, Ibid. 370.

Appeal.

103. Effect of decision in supreme court. Where a motion to quash an attachment because of a defect in the petition was sustained in the supreme court, and the defect was cured by amendment after the cause was remanded to the district court and judgment rendered against the garnishee, it was held, that the decision of the supreme court did not discharge the garnishee, and that there was no error in the subsequent judgment against him. Stadler Bros. & Co. v. Parmelee & Watts, 14 Iowa, 175.

104. Judgment payable in property. Where the garnishee in his answer stated that he purchased of the defendants "a lot of wheat at the 99. When judgment is no defense. A judg- price of $500, for which he was to pay in merment in garnishment against an attorney for chandise or trade, at his store in Warren county, moneys collected and held by him for the judg- as the same might be demanded," and that "he ment defendant, is not a sufficient defense to an gave his due-bill accordingly, which was assign action against the garnishee for such moneys, able," it was held, that the court below erred in by an assignee of the judgment defendant, if it rendering an unconditional judgment; that the is shown that, at the time the answer in gar-judgment should have been for the amount nishment was filed, the garnishee had knowl-named, dischargeable in goods or merchandise at edge of the fact that the claim upon which the a fair value, to be placed at the disposal of the money had been collected by him had been as- sheriff, in default of which the judgment should, signed to the plaintiff, but that he failed to set on motion, be made absolute and be enforced by up that fact in his answer. Large v. Moore, 17 general execution. Ibid. Iowa. 258, and § 65, ante.

100. Failure to enter return of execution. The failure of a justice to enter upon his docket a return of the execution on which a person has been garnished before judgment is rendered against the garnishee, is not such an error as will entitle the garnishee to a reversal of the judgment rendered against him. Houston v. Walcott & Co., 1 Iowa, 86.

101. A garnishee may avoid the judgment against himself by paying over money or property in his possession, belonging to the execution defendant, to the sheriff or officer serving the process. When a judgment is rendered it should be for a sum certain and in money. Ibid.

GENERAL TERM.*

1. Appeal: act of 1868. Sections 17 and 18 of chapter 86, Laws of 1868, relate to judgments rendered after that act went into operation, and as to these, appeals must be taken to the general term, and within the three months prescribed. But judgments rendered before said act went into operation are not affected thereby, and an appeal therefrom lies directly to the supreme court, and may be taken within one year from the rendition of the judgment. WRIGHT, J., dissenting. Simbersky v. Smith, 27 Iowa, 177.

2. The general term is an intermediate appellate tribunal provided by law for a substantial purpose, and causes taken on appeal thereto should be argued, examined and decided with appropriate and befitting care. An affirmance by consent with a view to an ultimate appeal to the supreme court ought not to be allowed by the general term. Roads v. Garman, 27 Iowa,

102. When the right to render a judgment against the garnishee is not contested, but it is alleged that the judgment rendered is erroneous, as in requiring the garnishee to pay a sum certain in goods, within a specific time, and in default thereof that the plaintiff recover the same sum in money, the error not being prejudicial to the rights of the garnishee, but for his ben- 338. efit, the judgment will not be reversed at his instance. Ibid.

Abolished by chapter 41, Laws of 1870.