Childs v. Nordella

Moore, J. The plaintiffs sued John T. Elliott & Son, the principal defendants, and garnished Nordella & Owen, who disclosed that they were indebted to the principal defendants, but had been notified that the amount of thfeir indebtedness had been assigned to Caroline S. Elliott. The case was tried in justice’s court, and from there appealed to the circuit court, where it was tried by the judge without a jury. The judge made a written finding of facts, and found, among other things, that on September 19, 1896, the plaintiffs sued the principal defendants, and had a writ of garnishment issue to the garnishee defendants; that the principal defendants had, the day before, assigned, in writing, their claim against the garnishee defendants, to Caroline S. Elliott, and delivered the assignment to her. The only question involved is, Was that assignment made for an existing indebtedness to Mrs. Elliott? It was the claim of Mrs. Elliott that the principal debtors had collected rents belonging to her for a series of years, [513] agreeing to apply them in paying taxes on her property, and interest upon mortgages that were upon her two houses, and the surplus to be applied in reducing the principal of the mortgages. It was also her claim that, when Elliott & Son made their contract with the garnishee defendants, it was agreed that the proceeds of that contract should be used to pay the interest on her mortgages, which would come due in September. The amount the garnishee defendants owed to Elliott & Son when they were garnished was $204. The circuit judge found that Elliott & Son had collected rent belonging to Mrs. Elliott, under the agreement stated, and that they owed her to exceed $250 at the time this assignment was made. It has been repeatedly held by this court that the special findings of fact in a case tried before a judge stand the same as a verdict of a jury would stand if the case were tried before a jury, and that, if there was testimony tending to sustain the findings of fact, this court would not set them aside. In this case, both Mr. and Mrs. Elliott swore to the indebtedness. They were cross-examined at great length, and counsel insist that, when their testimony is taken as a whole, it is shown no indebtedness exists, and therefore the findings must fail. It was the judgment of the judge that a different conclusion should be reached from the testimony from that drawn by counsel. There was testimony tending to sustain the conclusion reached by the trial judge, and we cannot disturb his findings of fact. It is said error was committed in the exclusion of testimony. In most instances counsel yielded to the rulings of the court without taking any exception. In those cases we cannot consider the assignments of error. It is said the court did not allow, on cross-examination, counsel to pursue the question of the insolvency of the principal debtors, and that this was error. We do not see how it could affect the result in this ease if the inquiry had been pursued. There is no dispute but the assignment in this case was made and delivered the day before [514] the suit was instituted. The only question involved was whether Elliott & Son were in fact indebted to Mrs. Elliott. If it had been shown that Elliott & Son were insolvent, it would not throw any light whatever upon the question as to whether they owed Mrs. Elliott. Judgment is affirmed. The other Justices concurred.