Maynards v. Cornwell

[311] By the Court, Martin, J. The act to authorize proceedings against garnishees, (S. L. of 1849, p. 153,) is in derogation of the common law, and must be strictly construed. It authorizes the plaintiff in any action before a justice of the peace founded upon contiactor judgment, .or decree, or after the rendition of judgment in any case, upon making and filing with such justice an affidavit stating that he has good reason to believe, and does believe, that any person (naming him) has property,.money or effects in his hands, or under his control, belonging to the defendant in such suit, judgment or decree, or that such person is indebted. to such defendant, to have a summons against such person requiring him to appear before him and answer under oath, all questions put to him touching his indebtedness to such defendant, and- the property, money and .effects of the defendant in his possession, within his knowledge or under his control — and such garnishee is entitled to the same fees as he would be if he was subpoenaed as a witness in such case. The effect of such summons is to render the person so summoned liable from the time of its service, to the plaintiff in such suit, to the amount of the property, money, and effects in his hands or possession, or under his control, or due from him to the defendant in such suit. Upon the appearance of such garnishee before the justice, the plaintiff may examine him on oath or otherwise, as the plaintiff may elect, touching the matters alleged in the affidavit, and the justice is required to take minutes of such examination, and’file the same with the other papers in the case. Upon closing the examination, if the suit be pending and undetermined between the plaintiff and defendant, the cause against such garnishee shall be continued, but not adjourned to any day certain; and after the determination of such suit .between the plaintiff and defendant, if the plaintiff have judgment, a. second summons shall issue against the gar [312] nishee, commanding him to appear and show cause why a judgment should not he rendered against him. In cases where the garnishee lias been so summoned, as well as when a judgment had been rendered before garnishee proceedings, the plaintiff may declare against the garnishee for the property, money and effects above mentioned in trover, or if the garnishee' be indebted to the defendant for moneys had and received, or if the garnishee shall have property, money and effectsof the defendant in his possession, and shall also be indebted to the defendant, the plaintiff may declare in trover and add thereto a count for moneys had and received, and the garnishee may plead thereto, and issue may be joined and tried, as if the defendant had brought such suit against the garnishee for the matters set forth in such declaration, .and either party shall be entitled to an appeal, or other process, as in other cases. If the plaintiff fail .to recover judgment against the defendant when garnishee proceedings are commenced before judgment, or if the defendant pay the judgment, or stay the execution, the proceedings against the garnishee .shall be deemed' discontinued. The garnishee proceedings are ancillary to the suit or judgment under which they are prosecuted. The garnishee upon his examination stands' in the attitude of a witness for the plaintiff, and is by statute entitled to fees as a witness. He is required to disclose in response to the affidavit, whether he has property-of the defendant, or is indebted to him. If from his answers, it appears that neither is the case, all proceedings against him are at an end as effectually as they are discontinued by> failure of the plaintiff to obtain a judgment, or by payment or stay of execution. This is necessarily so, from the nature'of the remedy. The garnishee is required to answer touching the property of the defendant in his possession or under his control, and also, as to his'indebtedness. Without such answer, no further proceedings can be had, and upon such answer in proper time, a summons to [313] show cause issues. The declaration under such second summons, if for property in the garnishee’s hands, must be predicated upon his disclosures, and if upon his indebtedness to the defendant, it is equally so. Such is the fair and legitimate construction of the language respecting the declaration. If such proceedings might be prosecuted without such examination, or after a full denial by the garnishee of his possession of property of the defendant, or of indebtedness, we must regard the requirements of the act respecting the first-summons and the examination, as meaningless. They' could only serve to entrap the garnishee, and work the grossest injustice to all parties, and be of no practical use in the further prosecution of the suit. Such an absurdity was never-contemplated by the Legislature. Rut it is urged that the provisions of the act relative to the-plea of the defendant, the joining of issue, and trial of the cause, show the intention of the Legislature was, that such action should be tried as an original cause. The whole act must be looked into to determine the meaning of these provisions, and they must receive a construction consistent with, the rights of parties, and the object sought to be obtained. It was never the intention of the law to substitute the creditor for the defendant in any suits he might choose to bring against imaginary debtors of such defendant. An indebtment must be shown to exist in order to authorize such substitution, and by the provisions of the act this can only appear upon examination of the garnishee. There may be such a-disclosure by the garnishee as will render a further inquiry necessary', and an adjudication to determine his liability, or its extent, as well as to protect him against subsequent litigation, but the present case does not involve that question. The garnishee by his examination is made the witness of the plaintiff, his testimony furnishes the foundation for the.subsequent proceedings, and they cannot be prosecuted independently of them. As such, his answers, when pertinent, [314] must be taken as true, and upon general principles be cannot be impeached. The examination of the garnishee, as it is the foundation of the subsequent proceedings, cannot be dispensed with upon the trial. It is upon that, that he is primarily liable, and upon its introduction, if a liability is disclosed, the burthen is upon him to show cause why the plaintiff should not have judgment. This he may do under the issue, in the manner provided by the statute, and this is all the act contemplated. It must therefore he certified to the Circuit Court for the County of Washtenaw, as the opinion of this Court, that there was no error in the rejection of the testimony of the witness, Nelson B. Nye.