Bailey v. Union Pacific R'y Co.

Day, Ch. J. I. It is not stated, as a ground of the motion to strike the answer from the files, that it does not appear that Shropshire was authorized or was competent, as an [358] officer or agent, to answer on behalf of the company. The ground of the motion seems to be that it is not competent for the garnishee to answer in writing at all, but that it must appear in court and submit to an oral examination, and answer orally such questions as may be propounded. The Code provides that, except when the plaintiff in writing directs the sheriff to take the answer of the garnishee, he must be required to appear on the first day of the next term of the court in which the case is pending, and answer such interrogatories as may be propounded to him, or he will be liable to pay the entire judgment which the plaintiff eventually obtains against the defendant. Code, § § 2979 and 2980. This provision cannot apply literally to tlie'case of a corporation aggregate, “an artificial being, invisible, intangible, and existing only in contemplation of law.” Such a being can not come personally into court and submit to an oral examination. The end of the statute must, therefore, be accomplished in some other manner. In our opinion it must be held competent for such a corporation to answer in writing through some officer or agent authorized by the company to do so, and cognizant of the facts. For a full discussion of this question, see opinion of the Illinois supreme court in Chicago, Rock Island & Pacific R’y Co. v. Mason, 11 Bradwell, 525. If issue be taken upon the answer so filed, then the plaintiff may summon any officer or agent of the company, and examine him as a witness. II. It is stated, however, in the answer, that the matter set up in the answer is immaterial, incompetent and irrelevant. The answer, in substance, sets up the assignment to Owen of the debt due to Bailey, and that the garnishee owes the debt to Owen and not to Bailey. It is true, it was held by this court in Wing v. Page, ante, page 87, that payment to the assignor of an open account, after notice of the assignment, is a good defense to an action thereafter institu-tuted upon the account by the assignee. This decision is based upon the peculiar provisions of sections 2086 and [359] 2087 of tbe Code. But, while the debtor may voluntarily pay to the assignor, and thus avoid liability to the assignee, we think that he is not under obligation to do so, and that the assignor can not compel him to make such payment. The answer of the garnishee simply sets up a state of facts showing that the garnishee is not under legal liability to the judgment debtor. This we think it is competent for the garnishee to show. III. A further ground of the motion to strike the answer from the files is that the assignment set out in the answer is not claimed to have been made prior to the service of the garnishment process. This ground of the motion is clearly based upon a misapprehension of the amended answer. It alleges “that at the date of the service of this garnishment it was not indebted to said defendant, J. S. Bailey, for the reason that the said Bailey had sold and assigned his wages.” This clearly is equivalent to an allegation that, when the attachment was served, Bailey had assigned his wages. In our opinion the court erred in striking the answer of the garnishee from the files. Reversed.