Shorter v. Moore, Trimble & Co.

McCAY, J. The affidavit of illegality filed in this case sets forth facts as a reason why this execution is proceeding illegally, which if true show that the judgment is satisfied. It states, in substance, that there were two judgments against Horbach, one in favor of Barnard & Company, and one in favor of Moore, Trimble & Company. That during the pendency of the suits, summons of garnishment had been served upon her in both the cases, and that judgments had gone against her on her answer as garnishee in both cases. Clearly, she is not bound to pay them both, nor is such the effect of judgments against garnishees on their answers. It is the right of each plaintiff, as soon as he gets a judgment [695] against his debtor to take a judgment against the garnishee. See 3491 Revised Code. It is an ordinary case, that a half dozen judgments of this character go against the garnishee for the same debt. The true effect of such a judgment is that the money shall be paid into Court for distribution, and it is clear that one payment of that sort satisfies all the judgments, Mrs. Shorter did not pay the money into Court, nor to the sheriff: she took the responsibility of paying it to what she thought was the oldest lien upon it. It was a dangerous thing to do, as she took the risk of having to pay it again, if the Barnard & Company judgment was not, in fact, the *superior lien. Yet, if that judgment is, in fact, entitled to the money, she cannot, as we think, be required to repay it. • It is said that the money ought to be paid into Court; that the plaintiffs, in his fi. fa., desire to contest the priority of the Barnard & Company judgment. We see no reason why they cannot do this just as well in this issue as though the money was in the sheriff’s hands. It will be a complete reply to the fact stated, that the money was paid to the oldest lien, if, in truth, it can be shown that it was not the oldest lien. That is the point of the affidavit. If that is successfully controverted, we think the illegality must fail. An affidavit of illegality, under our system, if the facts are set forth, may bring up. any good reason why it will be illegal to raise the money. Revised Code, 3614. We think the defectiveness of the levy does not amount to much. It is very easy to see what property is described. Nor are we satisfied that the execution does not follow closely enough to the judgment. We incline to think it does. Nor is the judgment void. It is irregular. It recites a fact that is not true, but we incline to think that it is too late to object, that the judgment is conclusive. We do not, however, decide this latter question, as it is not necessary. 2. We do not find any fault with the Judge for requiring the affiant to reduce the points of the affidavit into briefer language for the clearer comprehension of the Court and jury. But we think the Court erred in confining her too rigidly to the brief. The law requires and authorizes an issue to be made upon the affidavit. We admit that the motion, strictly construed, only presents the proposition that the judgment is null and void, and that, under a strict construction of it, the issue of satisfaction presented in the affidavit was not included. But the real questions here were those made in the affidavit. The motion is only a brief of it, for convenience, and we think the Court erred in not permitting the affiant to go into the issue of satisfaction, that issue being, in fact, distinctly presented in the affidavit. Judgment reversed.