Easley v. Gibbs

29 Iowa 129 | Iowa | 1870

Beck, J.

The ground of error assigned relates to the findings of facts and law by the court. The evidence introduced by the intervenor tended to prove the assignment of the claim upon Easley, in good faith and for a sufficient consideration, by the judgment debtor, at the time and in the manner set out in his petition. The only evidence introduced by the other parties was the original papers in the attachment suit, including the garnishee’s answer, and the testimony of the sheriff’ as to the time and manner of serving the attachment,' which it is not important to repeat here, as it is not relevant to the issue involved. Upon this evidence the court found against the intervenor.

The issue between the parties involves the determination of the rights of the respective claimants to the debt against the garnishee — plaintiff claiming it upon his judgment under the garnishee proceedings, and the intervenor under the prior assignment. Without making any question as to which party should have the affirmative of the issue, it is plain that evidence of the same character is required therein as in other cases. The intervenor having established, or having introduced evidence tending to establish the assignment of the debt to him before the service of the garnishee process, was clearly entitled to judgment, unless, upon proper evidence, other facts were shown which would defeat his claim. This the evidence introduced by plaintiff entirely failed to do. It consisted only of the papers in the attachment suit and garnishment proceeding, and the garnishee’s answer. The evidence of the sheriff, as has been stated, was not relevant to the issue, and was unimportant. The court seems to have taken the garnishee’s answer to the attachment proceeding as competent evidence, and considered the facts therein stated — even the admissions and statements of the judgment debtor — as proved. This is clearly error. The issue is between the plaintiff and intervenor. No rule of evidence will admit the garnishee’s answer, which, at most, amounts to no more than an ex parte affidavit upon such an issue. We presume that the court also considered the answer of the garnishee to the intervenor’s petition as evidence. This is equally erroneous for the same reason. The petition of the intervenor sets out sufficient grounds of claim to the debt in controversy. Proper evidence, tending to support this claim, was introduced. The answers of plaintiff and garnishee to the petition of the intervenor aver sufficient defense to the intervenor’s claim, but of course they can only be supported by legal and sufficient evidence.. As we find that all the material facts found by the court in support of plaintiff’s side of the issue are not sustained by legal and sufficient evidence, the judgment is reversed and the cause remanded.^

Reversed.