Rose & McCarthy v. Whaley & Edwards

Cole, J. Cole, J. Plaintiff brought suit by attachment against Whaley & Edwards, Plaintiff brought suit by attachment against Whales/ & Edwards, as non-residents, and garnisheed Wright, Allen db Co., Coleman, Button <& Withers, G. S. Hawkins, and Oalcey <& Hawkins. as non-residents, and garnisheed Wright, Allen S Co., Coleman, Button & Withers, G. S. Hawkins, and Oalceu <& Hawkins. The two first failed to answer within ten days, and an ex parte order was entered, talcing the interrogatories for confessed. No judgment was entered against the garnishees for any sum of money. After this order had been entered against Wright, Allen <& Co., and before any service had been made, even upon the curator ad hoc of the defendants, they appeared and asked that plaintiff show cause why the order taking the interrogatories for confessed avainst them should not. he set aside. After hearing' of the application, the court rescinded the order, and allowed the garnishees to answer. A similar order was made in behalf of Coleman, Button & Withers, and their answers were also filed. The answers of both of these parties showed that they had in hand at the time of the garnishment, or at the time of their answers, no property of the defendants. The case was subsequently called and fixed for trial, and tried on the 13th December, 1858, as between the plaintiff and the curator ad hoc, the garnishees not being then before the court. The District Judge, being of opinion that he was without iurisdiction. dismissed the plaintiffs’ petition. The only question in the case is, whether the court erred in permitting the garnishees to answer, after the interrogatories to them had been taken for con--fnccorl Tli ft ftmivf. flirl nnf. app The object of garnisheeing is to know whether a party has funds in his hands belonging to another, against whom plaintiff cither has or expects to get judgment ; so that, after ho has obtained judgment, he may also obtain judgment against the garnishee, for the amount of his judgment against his debtor, or for as much as there may be funds in the hands of the garnishee, due or belonging to •f lift rlfthf.np Until the creditor has judgment against his debtor, he cannot' have judgment against the garnishee, for the latter is not indebted to the creditor, but to his /Iftllf.ilP The mere order of court taking the interrogatories for confessed, before a judgment has been obtained by the creditor, cannot, then, absolutely benefit him, and is not an order which he can in all events enforce against the garnishee, for if the [375] creditor does not succeed in getting a judgment against his debtor, the order taking the interrogatories for confessed will not profit him. As then the creditor cannot get judgment against the garnishee, until he has obtained it against his debtor, the object of the law in forcing him to answer within a certain time, will be effected if he answers any time before judgment be rendered against the debtor. The garnishee has then the right to ask of the court, at any time before judgment, that the order taking his interrogatories for confessed may be set aside, and that he may be allowed to answer. And it is within the sound discretion of the court, and also its duty, to grant the request, if the ends of justice would be thereby attained. It is objected, unless a party be entitled to show, by the silence of the garnishees, that they tacitly admit having property of the defendant in their hands, the plaintiff cannot proceed to put the cause at issue, because the defendant is only in court by the attachment of his property. In answer to this we would remark, that when a party is proceeding against an absentee, the silence of the garnishees to answer within the specified time, and the order taking the interrogatories for confessed, are sufficient to raise the presumption that they have funds in their hands, and thus to maintain the jurisdiction of the court, until they have answered, denying the possession of any funds; and even after this, if their answers can be proved to be untrue. As the garnishees in this case answered that they had no funds or property, and as their answers were not contradicted, the District court was without jurisdiction. Prosens v. Mason, 12 L., p. 16 ; Elder v. Rogers, 11 An. 606, 10 M. 630 ; Caldwell v. Townsend, 5 M., N. S., p. 308. Judgment affirmed, with costs of appeal.