Palmer v. Gilmore

Opinion by Mr. Justice Mitchell, The judgment note from Gilmore to Rogers imported a debt due, and would have made a prima facie case for this plaintiff against the garnishee, had it not been neutralized by the verdict upon it for defendant in the suit in C. P. No. 2. But if the jury should be satisfied that that verdict was collusive and fraudulent against this present plaintiff as an attaching cred [54] itor, then the verdict would be a nullity as to her, and the case would stand here, as it stood on the opened judgment in C. P. No. 2, with a prima facie case for the plaintiff made out by the note, and the burden on the defendant to show that there was nothing really due. The effect on the present issue would be simply to take the verdict out of the way and leave the case as if it had never been rendered. The first point to be considered therefore is, whether the plaintiff presented sufficient evidence to go to the jury on the collusive and fraudulent character of the verdict in G. P. No. 2, and we are of the opinion that she did. The variations, not to call them discrepancies, between the testimony of Gilmore on the stand, and his previous affidavits in the suits of Rogers v. Gilmore and Knight v. Rogers, the peculiar circumstances of the trial in G. P. No. 2, the attachments furnishing a motive for a collusive arrangement between Rogers and Gilmore, the payment to Knight the only attaching creditor who stood in the immediate way of an arrangement, and the testimony of Gallagher which if believed pointed clearly to the existence of such arrangement, made out a case which if uncontradicted or unexplained would justify the jury in finding that there was collusion and fraud. ■ It may all be susceptible of clear and satisfactory explanation, and, if so, the verdict in G. P. No. 2 will be conclusive even against the present plaintiff that there is nothing due from Gilmore to Rogers on the note in question. But such explanation is for the jury. Ground having been laid for the claim of fraudulent combination between Rogers and Gilmore, the declarations of either, in reference to the debt, become competent evidence: Lowe v. Dalrymple, 117 Pa. 564. Judgment reversed, and venire de novo awarded.