Scales v. Swan

ORMOND, J. The answer of the garnishee filed in this case, was, in our opinion,sufficient to have warranted a judgment against him. It is, in substance, an admission that the negroes sent home with his son-in-law on the marriage of his daughter, were given to the son-in-law, and afterwards re-purchased by him. It is true, that he states he made no title to the slaves, by which he doubtless means that he executed no written evidence of title to his son-in law. Rut that was not necessary, to vest the son-in-law with the title, as the title to personal property passes by delivery, and that the parties so understood it, is manifest from the plaintiff afterwards receiving a title to the slaves from McLure, and agreeing to pay him five hundred dollars. The court, however, was not bound to receive an answer in writing. The statute evidently contemplates the personal i!appearance and examination” of the garnishee in open court — (See Aik. Dig. s. 19, p. 42) — and although for the sake of convenience, and the dispatch of business, it may be waived when the answer is full and explicit, there is no obligation on the court, and there would be no propriety, in receiving an answer studiously drawn to evade the true question. It is of great importance, that the right to examine the garnishee in open court, should not be drawn in question; the court were, [168] therefore, not bound to receive an evasive written answer, but might consider it as a nullity, and enter an interlocutory judgment. As the court had a right to treat the answer as a nullity, there was no error in sustaining exceptions to it, although there was no necessity to file exceptions. But if this is an error, it is one of which the plaintiff in error cannot complain, as, in our opinion, the answer was sufficient to authorise a judgment against the garnishee. The judgment nisi being properly entered, the right to enter a final judgment on the return of the scire faci-as, followed as a necessary consequence. The amendment of a clerical error of-a ministerial officer of the court, by inserting the sum for which the judgment.nisi was rendered-, is also assigned for error. No other question is raised, but the power of the court to make such amendment. It however clearly appears from the record, that the plaintiff in error was in court, and the amount for which the judgment against the garnishee was rendered, being the amount of the judgment against the defendant in the attachment, there was sufficient data on which to predicate the amendment, and it was therefore the duty of the court to direct the amendment to be made — (Wilkeson vs. Goldthwaite, 1 Stew. & Por. 159.) There is no error in the judgment of the Circuit court, and it is therefore affirmed.