24 Ill. 320 | Ill. | 1860
The garnishee admitted an indebtedness to the judgment debtor, of four hundred and sixty-seven dollars on the building contract, over and above his claim for damages for delay, and nineteen dollars on account of extra work and another transaction. A part of this was due at the time, and a part was to become due. We find nothing in the record, in the face of these admissions, to justify a judgment in favor of the garnishee. Indeed, it is admitted that as to nineteen dollars, judgment should have been entered against the garnishee. As to the balance due upon the building contract, the garnishee answered, that on the 13th September, 1859, he was served with what purported to be an assignment of the amount due on the building contract, from the judgment debtor to one Lupsch, which purported to have been dated on the 25th May, 1859. It must be borne in mind that the garnishee process was servéd on the 1st of July, 1859. Should we say that the statement or answer by the garnishee, that he had been served with notice of what purported to be an assignment of a debt, without any evidence, or even the expression of an opinion, that it was genuine, should be held sufficient to discharge the garnishee, we lay down a principle which will, or may, at least, defeat the purposes of the law in all cases. We appreciate that the subject is not without its embarrassments, as the statute now stands. We are not now prepared to say that a bona fide assignment of a debt, before the service of the garnishee process, may not defeat it, but it must be shown to be a bona fide assignment, upon a consideration passed. We can easily perceive the difficulty in which a garnishee may be placed, who is obliged to prove a bona fide assignment, in order to save himself from a judgment in the garnishee proceeding, while he may not know or have the means of showing whether the assignment is genuine or not. We think we should be doing no violence to the spirit of the attachment law, to require the assignee to appear, upon notice by the garnishee, and establish the genuineness of the assignment; and if he will not do this, he should not be allowed subsequently to recover against the garnishee. We are prepared to say that it would be a good defense by the garnishee to an action in the name of his creditor for the use of the assignee, to show the judgment against the garnishee in the attachment proceeding, and that the assignee, upon reasonable notice, had neglected to appear and vindicate thze bona ftdes of the assignment, and his sworn statement filed with it as a part of the garnishee’s answer, would serve for the issue upon which that question could be tried. Such would be a convenient practice, and tend to promote and protect the rights of all parties. Without this, we must hold the assignment void as to the garnishee proceeding.
The judgment is reversed, and the cause remanded for further, proceedings in accordance with this opinion.
Judgment reversed..