24 Kan. 359 | Kan. | 1880
The opinion of the court was delivered by
The defendant in error, plaintiff below, recovered a judgment before a justice of the peace for $195.46; against one Wm. Dunworth, and caused garnishee process to-issue to plaintiff in error, which answered by S. L. Shotwell, its cashier, denying any indebtedness to said judgment-debtor Dunworth, but admitting having issued to him a certificate of deposit, in words and figures as follows, to wit:
“$460. Eldorado, Kas., 5th June, 1878.
“John R. Morrison has deposited in the Exchange Bank of Eldorado four hundred and sixty dollars, payable to the order of Wm. Dunworth in current funds, on the return of this certificate properly indorsed.
“No. 71. S. L. Shotwell, Cashier.”
Certain payments were indorsed upon this paper, but a balance still remained due. In an action brought against the bank as garnishee, it appeared that after the garnishment, Dunworth presented the paper for payment, which was refused, and that shortly thereafter one David Lower presented the paper duly indorsed by Wm. Dunworth, and then the bank paid it.
We think the judgment of the district court unquestionably correct. The paper, whether negotiable or not in the first instance by the law of the state or the custom of the country, was presented by the payee and holder after the garnishment, and payment was refused. It was then, if never before, past-due and non-negotiable paper. As such, the debt
It is further claimed that because the plaintiff did not give notice that the answer of the garnishee was unsatisfactory, but obtained upon it an order for the payment of money, and brought suit upon that order (which, however, was dismissed before the commencement of this action), that he is estopped from now suing and alleging that the answer is not full, true and satisfactory. We do not so understand the statute. While a party may give notice that the garnishee’s answer is unsatisfactory, and have a trial thereof at once before the justice, we consider that remedy as simply cumulative. He may proceed in that way, or by action. Failure to give notice is no waiver of objection to the answer. The truth of the answer is the substance of the matter, and the manner of ascertaining the truth is.optional with the plaintiff. Until a final decision in either proceeding, he may abandon one and substitute another.
These are the only questions of importance in the case, and in them appearing no error, the judgment will be affirmed.
