Rutherford v. Fullerton

[354] Judgment affirmed. The judge held that Rutherford, having notice that the debt was due by him to Fullerton, could have set forth in his answer to the garnishment the facts as they existed and let the court determine to whom the money should go, and thus have relieved himself from liabilty, but he undertook to decide the question and decided it wrongly ; and that while Fullerton might have filed his claim to the money he was not compelled to do so, the claim laws being cumulative only, permissive and not mandatory. Rutherford contends by his exceptions as follows: His plea should have been sustained. It was not his duty to set up defences for Fullerton, but Fullerton was bound to protect his interest by filing his claim or having Meredith traverse the answer of the garnishee. If he had set forth in his answer that after the service of the garnishment he had been notified that-the debt was not Meredith’s, and had asserted therein his belief, based on the fact that he had given the contract to Meredith and knew no one else therein, that the debt was due to Meredith, it would have been the duty of the court, on this answer untraversed, to have rendered judgment against the garnishee. The statements made to him'by Meredith and Fullerton after the service of the garnishment would have been inadmissible, and he could not have legally set them up in his answer as a. defence to the right of Sluskey to have a judgment against him as a garnishee. J. S. & W. T. Davidson, for plaintiff in error. Salem Dutcher, by brief, contra.