Smith v. Dysard Construction Co.

Russell, C. J. 1. A garnishing creditor can not complain that the garnishee, to whom the defendant in fi. fa. is largely indebted, pays to the defendant after the service of the summons of garnishment, a sum of money less than the garnishee’s demand against the defendant, and which the garnishee could have held in partial payment of his demand, though the plaintiff in the garnishment may require that the funds so paid to the defendant shall operate to extinguish, pro tanto, the claim of the garnishee against his debtor. If the alleged indebtedness of the defendant to the garnishee is not in fact a just demand, or the claim of indebtedness is a mere cover for fraud, this question may properly be raised upon the issue formed upon a traverse to the answer. 2. For the reasons stated above, the trial judge did not err in refusing to sustain a motion to enter up judgment against the garnishee in proceedings brought by a judgment creditor, in which it appeared from the garnishee’s answer that the judgment debtor was indebted to the garnishee in an amount largely in excess of the amount which the garnishee admitted had been paid to the defendant after service of the summons. Judgment affirmed. Roan, J., absent.