Brainard v. Simmons

Adams, Ch. J. 1. PRACTICE: bill of executions : answer of garnishee. The appellant’s abstract sets out what purports' to be the answer of the garnishee, and states that court rendered judgment upon such answer, The appellees file an amended abstract in which they deny that any portion of appellant’s abstract is correct, and deny that it contains the evidence upon which the judgment was rendered. In addition to that they state that no bill of exceptions was ever filed, and that no bill of exceptions or certificate of [465] tue evidence was- ever signed by tbe trial judge, and tbat it is impossible for the appellant to identify tbe evidence. This statement not being denied must be taken as true. Tbe appellant has evidently proceeded upon tbe theory tbat tbe judgment was rendered upon tbe garnishee’s answer alone, and tbat no bill of exceptions was necessary. His abstract sets out wbat be claims is tbe record entry, which shows tbat tbe judgment was rendered upon tbe answer of tbe garnishee. If its correctness bad not been denied by tbe appellees in an amended abstract, we should take tbe record as set out to be correct, and assume tbat tbe judgment was rendered solely upon tbe answer of tbe garnishee; and if it bad not been stated by appellees in an amended abstract tbat no bill of exceptions was filed, we should have assumed tbat a bill of exceptions was filed if necessary. • ¥e assume from tbe amended abstract, in tbe absence of a transcript, tbat there was no bill of exceptions, and we think a bill of exceptions was necessary. It would not be enough for us to assume or know tbat tbe judgment was rendered solely upon the answer of the garnishee. It would still be necessary to know wbat tbe answer of tbe garnishee was. Now, if tbe answer bad been made a part of the record, and tbe abstract purported to show it fully (and we are not prepared to say that it does not), it would not have been sufficient for the' appellees to simply deny tbat it is correctly set out. It would have been necessary for them by an amended abstract to show wherein it was not correctly set out, and show wbat tbe true answer was. But they cannot be required to show wbat is not of record. Tbe appellant in assuming tbat tbe answer was a part of tbe record, must have assumed tbat it was in tbe nature of a pleading. In our opinion it. should be regarded as evidence. Tbe statute provides tbat tbe notice to tbe garnishee must require him to appear in court, and answer such interrogatories as may then be propounded to him. Code, § 2979. If be appears be is entitled to tbe pay and mileage of a witness. [466] Code, § 2983. And he may demand his fees and mileage at the time he is summoned. Westphal v. Clark, 42 Iowa, 371. It is not sufficient for him simply to draw and file an answer denying all indebtedness, however full and explicit the answer may be. It is the right of the garnishing creditor to subject the garnishee to an examination in court, and elicit by apt questions, the circumstantial as well as the ultimate facts, if there are any, tending to show the indebtedness of the garnishee to the principal debtor. An answer denying all indebtedness, simply drawn and filed as if it were a pleading, may on .motion be stricken from the files, as being drawn and filed without authority of law. Penn v. Pelan, 52 Iowa, 536. If such paper could be recognized it would prevent the garnishing creditor from obtaining judgment, and it is his right to have judgment if the garnishee, having been duly sum- • moned and his fees tendered, if demanded, fails to appear and .answer the interrogatories propounded to him. Regarding then the answer of the garnishee as evidence, there is the same necessity for its proper preservation and identification that there is of any other evidence, where any question depending thereon is to be reviewed upon appeal. The questions raised by the appellant garnishee in this case all depend upon his answer. But we cannot take notice of •what he claims to be the answer without such authentication as.the law provides, to-wit: a bill of exceptions. Affirmed.