Rankin v. Simonds

Caton, C. J. Although the question has never before been made, so as to call for a direct decision, it has always been the practice of our courts to treat the interrogatories to and answers of a garnishee as a part of the record without requiring them to be embodied in a bill of exceptions, and such we have no doubt is the correct practice. They constitute a part of the pleading in the cause, and as such are a part of the record as much as any other pleading. The statute expressly provides that an issue may be taken on the answer of the garnishee, and it follows that if the answer is not thus traversed by the formation of such issue, it must be taken as true, and by it must the rights of the parties be judged. This has been settled by repeated decisions of this court. The garnishee has a right to set up any claim which he has against the defendant, to meet the fund which he may have in his hands, which he could set off or recoup in an action brought by the defendant to recover such fund. By this rule we think the garnishee should have been allowed the several claims which he asserted in his answer, except the item for two hundred and sixty-nine dollars and fifty-four cents, which was for a note of that amount which he held against the Hannibal and St. Joseph Railroad Company, and which he had placed in the hands of the defendant for collection. This note, he admits, has not been collected, but he claims to be allowed for the amount, for the reason that the defendant owes that company more than the amount of the note. He still retains the note, and his account with the company is still unsettled. Now the title to this note is still in the garnishee, and he has a right to withdraw it at any time from the hands of the defendant, who has not collected it and who is consequently not liable to the garnishee for its amount. Had the defendant settled with the railroad company, and delivered the note up’ as so much cash upon the amount which he owes to the company, then indeed the garnishee might well treat it as so much money in his hands. As it is, we think this claim should not be allowed. We observe, too, that the judgment.was not entered in proper form, and hence we will repeat what we said in McLagan v. Brown, 11 Ill. 519, as to the proper mode of entering a judgment against a garnishee. There the court said: “The proper practice would therefore seem to be, to enter the judgment against the garnishee in favor of the defendant in the attachment, for the benefit of such attaching creditors as are entitled to share in its proceeds.” Here the judgment was entered against the garnishee, not in favor of Elliott the defendant in the attachment, to whom the fund in his hand belonged, but in favor of Simonds, the plaintiff in the attachment, and to wham the fund did not belong. In this case the fund in the garnishee’s hand was greater than the amount of the judgment which Simonds recovered against Elliott, and his judgment against the garnishee would nave been greater than the amount recovered against Elliott but for the deductions which the garnishee has a right to have allowed for claims against Elliott. And as it is, he has two judgments in part at least for the same demand against two individuals. Whatever judgment is finally rendered against the garnishee, should be entered up in favor of Elliott to the use of Simonds, or so much of it as is sufficient to satisfy his judgment against Elliott, and the balance, if any, to the use of Elliott himself. The judgment must be reversed, and the cause remanded. Judgment reversed.