Firebaugh v. StoneFirebaugh v. Stone
delivered the opinion of the court.
Plaintiff sited Dyer & Rоberts on by attachment, and summoned Stone as garnishee. Stone answered stating that he had in his possession and under his control certain money, goods, effects, &c., of the defendants, by virtue of an assignment made and executed by them to him.
This аssignment in another case came before this court, and it was decided to bo invalid. After said decision Stone filed his аmended answer, stating that at the time of the service of thе garnishment, he had in his possession twenty-seven hundred dollars in United States legal tender treasury notes, and about twenty-five hundred dоllars in notes and accounts, most of which were worthless, and denied that he owed defendants anything. He further stated that defendants, at the time of the service of the garnishment, owed him and still do owe him two notes, and for services rendered аt their special instance and request, in about the sum of nine hundred dollars; and that he has been served with garnishment in favor оf other parties prior to his being garnished by plaintiffs, and that, after deducting the amount which defendants owed him and what he wаs liable to pay to the older attaching creditors, hе was ready and willing to pay whatever balance therе might be.
Plaintiff demurred to this answer for insufficiency, alleging that the facts therein stated constituted no legal grounds of defenсe, and that Stone was not entitled to retain his debt in prefеrence to the attaching creditors. The court overruled the demurrer, and gave judgment for Stone, the garnishee, and this is now complained of as error.
In this case we arс unable to perceive that any other relation thаn that of debtor and creditor existed between the defendants in the attachment suit and Stone. In a direct procеeding- by them against him, to recover the property in his possession, or for money had and received, there is no doubt about his having a right to plead his debt as a set-off. The invalidity of the assignment is totally immaterial ; it
The rights of a garnishee will never be disturbed by the garnishment. Whatever claim hе may have against a defendant, and of which he might avail himself by set-off in an action between them, will be equally efficiеnt when invoked by him on a proceeding by garnishment. (Ashby v. Watson,
The assignment having been held void and of no effect, there is no pretence that Stone occupied the position of either a trustee for the creditors, or a bailee to the debtors.
The judgment is affirmed.