Blackman v. Smith

GOLDTHWAITE,J.~ 1. Theplaintiff here,in theCourt below was riot a party to the cause in the first instance, but he is called in at the instance of the garnishee, to assert or relinquish his claim to the debt, which otherwise is admitted by the garnishee to be subject to satisfy the demand of the creditor, at whose motion the garnishee was summoned. In this relation to the suit, he can only be heard to complain of errors which affect himself. The original debtor does not complain of the proceedings against him, and the garnishee is also silent, and therefore, so far as the transferee is concerned, must be presumed to have waived any errors or irregularities which may be in the record. [Stebbins v. Fitch, 1 Stewart, 180; Thompson v. Allen, 4 S. & P. 184.] 2. One of the supposed irregularities which affect this party, is, that the notice by which he is called into Court, is a joint one, that is, that another transferee ia named in it, and was summoned at the same time. We do not consicIe~ this objection as, of any importance; the object of the notice, in this i~node of pro~ ceeding, is, to advise the supposed transferee, that the plaintiff iu~ tends to dispute his right to the debt, supposed by the garnishee to be transferred. If he disclaims all interest in the debt sought to be subjected, he is .discharged, as a matter of course, and with-s out costs; but if he, as supposed by the garnishee, asserts any right, that is determined upon the necessary allegations, if any are interposed, and in the event of an issue, that is determined by a jury. It is obvious, that if the party objects to the sufficiency of the notice, it must be done previous to the trial of an issue ; therefore, if the notice in the present case was defective, it would ~iot now avail. 3. The objection, that no issue was tendered to the transferee~ comes within the often repeated decisions of this Court, that one will be presumed in all cases, after verdict, as will all the p1ead~ ings necessary to support it, when there is no exception on tho Tecord. [Wheeler v. Bullard, 6 Porter, 352.] [206] 4. All the other assignments of error except the one respecting the judgment for costs, falls within the principles we have all’eady ascertained, and in this particular, there is no error. As soon as the party asserted a claim to the debt, as against the supposed right of the plaintiff to condemn it, the cause assumed the form of a contested suit, as between these parties, and costs followed as of course, upon the judgment of the Court, ascertaining that the right to the debt was in the judgment debtor. [Stebbins v. Fitch, 1 Stewart, 180.] There is no error in the record available to the present plaintiff. Judgment affirmed.