Reid, Murdoch & Co. v. First National Bank

Mr. Justice Smith delivered the opinion of the court. The record shows that this cause was advanced upon the trial calendar and set down for trial on May 14, 1906, on the motion of attorneys for the interpleader without objection from any of the parties. When the case was called for trial the court ruled that the case was before the court for the trial of all the issues, and that the burden of proof was on the' plaintiff, and required the plaintiff, appellant, to proceed with its proof. The question presented on this appeal is whether this ruling of the court was correct or erroneous. ' ' The contention of appellant is that only the issue upon the interplea of the First National Bank of Richmond was before the court for trial. “All of the issues between the appellant and the Richmond Canning Company had been disposed of, the Canning Company having been duly served by publication and its default entered,” it is claimed. The cause against the Richmond Canning Company had not been disposed of. ' ‘ The default admitted every material allegation of the plaintiff’s declaration, and left nothing but the assessment of damages open to be determined. * * * The indebtedness was admitted but the amount had to be ascertained by the inquiry. The defendant on the execution of a writ of inquiry has no right to give any evidence which would defeat the action, but only such as tends to reduce the damages.” Cook v. Skelton, 20 Ill. 107, 111. “The defendant had the right to cross-examine the plaintiff’s witnesses and introduce witnesses on its part on the question of damages, ask for instructions as to the proper measure of damages, and preserve the rulings of the court by bill of exceptions.” Cairo & St. L. R. R. Co. v. Holbrook, 72 Ill. 419, 422; American Mail Order Co. v. Marsh, 118 Ill. App. 248. Upon this question, therefore, the burden of proof was upon the plaintiff to introduce its evidence. . The whole case was before the court and it was within the discretion of the court, we think, in the condition of the record, to dispose of the assessment of damages, the issue on the answer of the garnishee, and with that issue the issue on- the interplea, which was in no way* different from the issue on the answer of the garnishee, at the same hearing or trial. The argument of counsel' for appellant proceeds upon the assumption that the trial court held that the plaintiff had the affirmative on the issue tendered by the interplea. As we read the record the court made no 'such ruling. Finding no ruling in the record of the question argued, the question is not properly before us. There was some argument before the court upon the question whether the court should take up the question on the interplea before the case itself was tried, but no motion was made to that effect, and we do not think that precise question is presented by the record. As the issues were made up in this case, however, the issue on the interplea was precisely the same as that presented by the answer of the garnishee and the replication to it. The answer of the garnishee “claims and insists that it is accountable for the fund of $709.20 aforesaid to said First National Bank of Bichmond, Bad., and not to said Bichmond Canning Company, and it denies all liability to said Canning Company for or on account of said fund or any part thereof.” The replication of the plaintiff alleges “that said moneys received by the garnishee from Steele-Wedeles Co., to-wit, $709.20, were the property of the said Bichmond Canning Company, the defendant herein.” The interplea of the First National Bank of Bichmond avers that the $709.20 attached and sezied by virtue of said writ of attachment “were at the time the same were so attached and seized, and still are, the property of it, the said First National Bank of Bichmond, and not of the said Bichmond Canning Company.’’ The burden was upon the plaintiff to disprove the answer of the garnishee, for it denies all indebtedness at the date of the service of the writ upon the garnishee; The plaintiff must disprove that answer before it can recover. Rippen v. Schoen, 92 Ill. 229. We cannot hold, therefore, that upon this record it was the duty of the court to try the issue tendered by the interplea by a separate and independent or preliminary trial, and then retry the same question as against the garnishee. Nor do we think that the plaintiff had a right to have the issues so tried in this case. Finding no error in the record, the judgment is affirmed. Affirmed.