Cadwalader v. Hartley

| Ind. | Dec 14, 1861

Perkins, J.

Cadwalader <& Co. commenced suit against Tileman Hartley, on a note which he had given to them. The maker of the note was the only proper party defendant to the suit upon it; judgment was obtained against him upon the note. At the commencement of the suit Cadwalader c& Co. procured an attachment, and also a process of garnishment against the debtors of Tileman Hartley. Among them, process of garnishment was served on James Taylor, March 21,1857. Taylor answered, that in January, 1857, he was indebted to Tileman Hartley by promissory note in the sum of $900, and that on February 15, 1857, he ivas notified that said note was transferred by assigmnent, to one John Hartley, who still held said note. He does not say whether the note was one governed by the law merchant, or not, but it appears by the record that it Avas not. This ansAver would bar a judgment in favor of the plaintiff against the garnishee if the assignment set up could not be successfully denied, or avoided. If the plaintiff concluded to attempt its avoidance by replying that the assignment Avas without consideration, or fraudulent, it would be proper, if not necessary, for him to ask that the assignee, John Hartley, should be brought before the Court, that he might be bound by the judgment. He was brought before the Court in this case; and on the trial of the issues made between the plaintiff, the garnishee, and assignee, it would seem that the defendant to the original action would be a competent witness. He would not be a party to the garnishment branch of the suit, and would be legally disinterested even between the parties to that. He was made a witness in this case. See the Junction, &c. Co. v. Cleneay, 13 Ind. 161" court="Ind." date_filed="1859-11-15" href="https://app.midpage.ai/document/junction-railroad-v-cleneay-7034354?utm_source=webapp" opinion_id="7034354">13 Ind. 161; and Stetson v. Cleneay, 14 id. 453. The Court below refused an amendment to a replication, but it seems thát evidence was heard, the same as though the amended replication had been filed; and such amendments as that asked in this case are much in the discretion of the Court trying the cause.

J. A. Matson, J. A. Scott and J. Coiogill, for the appellant. Williamson and Daggy, for the appellees.

Quaere: If the objection had been made, could the question of the fraudulent transfer have been tried in the garnishment proceeding ?

Per Curiam. — The judgment'is affirmed, with costs.