Coleman v. Fennimore

Buchanan, J. Plaintiffs being creditors by note, of a person who had made a contract with a Board of Levee Commissioners of Madison parish to build a levee, sued their debtor and attached in the' hands of the commissioners, the amount that might be due him upon the said contract. The garnishees answered the interrogatories propounded to them, as follows : that upon the contract made by defendant with the garnishees, he had estimates furnished by the engineer to the amount of $88,000, for which, warrants have been issued, less twenty per cent.; that by the terms of the contract and regulations of the board, twenty per cent, on the amount of the estimates, is retained until the entire completion of the contract; that John Fennimore has not yet completed his contract; that the time for its completion has been extended to a future day ; that if by that time the contract upon which the estimates have been given, shall be completed, then warrants will issue for the amount retained on the estimates already furnished, as well as for the work to be completed ; and if the contract shall not be then finished, defendant cannot claim anything of garnishees, as, by the terms of his contract, the amount retained will be forfeited to the board. These answers have not been traversed; yet simultaneously with judgment against defendant, judgment has been rendered against the garnishees, “ for the unpaid balance, or so much thereof, as will pay and satisfy this judgment, re [254] tained by said Levee Board, on a contract between John Fennimore and the Board of Levee Commissioners in the 15th ward, as set forth in the answer of said garnishees.” Prom this judgment garnishees have appealed. The judgment is erroneous. The answers of garnishees are taken to be true, until disproved or contradicted by legal evidence. Nothing of the kind has been done or attempted here. On the contrary, the plaintiff has given in evidence the answers of the garnishees, and nothing more, as against them. Those answers acknowledge no present indebtedness to defendant; nor any future indebtedness, except contingent upon an uncertain event. Failing that contingency, garnishees will owe defendant nothing. It is evident that this judgment is premature. As the time limited for the performance of the defendant’s contract has now past, however, we will remand the cause, to give the plaintiffs an opportunity of propounding supplementary interrogatories to garnishees, in reference to the actual state of their account with defendant. The defendant has also appealed ; but he has presented no case for relief at our hands. The judgment, as regards him, appears to conform to justice under the law. It is, therefore, adjudged and decreed, that the judgment of the Court below as to the garnishees, the Board of Levee Commissioners, be reversed ; and the cause remanded for further proceedings, upon the garnishment process; that, as regards the defendant, the judgment be affirmed; and that the costs of appeal be borne, in equal proportions by plaintiffs and defendant.