Fulton v. Gesterding

47 Fla. 150 | Fla. | 1904

Carter, P. J.

— Many errors are assigned, some, of which are so imperfectly presented by the ordinary bill that they will not be considered, and others are without merit, so that the discussion will be confined to two questions, vis: The ruling permitting the further answer to be filed, and that denying the motion for a new trial.

I. The garnishment statutes provide that upon traverse of the answer of a garnishee “the court shall direct without the formality of pleading a jury to be empanelled to inquire what is the true amount due from such garnishee,” etc. Sec. 1673, Rev. Stats. In Howe v. Hyer, 36 Fla. 12, 17 South. Rep. 925, the court held, construing this statute that under such issue the court should allow any legal and proper evidence and defense that would show the true amount due from the garnishee to the defendant. Under this decision the matters attempted to be set up in the further answer as res adjtidicata or estoppel were not required to be specially pleaded, but might have been proven under the issues raised by the traverse of the first answer, if they constituted a defense. Little v. Barlow, 37 Fla. 232, 20 South. Rep. 240. This court has never decided whether it would be error to permit an answer in garnishment to be filed setting up special defenses which could be made available under the answer denying generally indebtedness and custody or control of property, nor is it necessary to determine the question in this case as the court below should have denied the application to file the further answer on another ground, via: that its allegations were insufficient to show res adjudicata or estoppel by reason of the alleged judgment in the former garnishment. The effect of the further answer so far as the judgment set up is concerned, was simply this, that on the 18th day of April, 1899, it was judicially determined that the railroad company was not on October 7th, nor December 6th, 1897, nor at any period of time between those dates indebted to Gesterding in such a manner as to be liable to a writ of garnishment, and that it did not at such times have any chattels, money, credits or effects of Gesterding subject to garnishment in its hands, custody or control. Boyle v. Maroney, 73 Iowa 70, 35 N. W. Rep. 145, S. C. 5 Am. St. Rep. 657. The writ issued in the present case required the garnishee to ánswer, not what it had in 1897, but what it held on May 7th, 1900, or thereafter, and the mere fact.that in a prior suit it was determined that more than two years previous to that time the garnishee was not liable in garnishment afforded no answer to the present writ. It is true that the answer further alleged that the railroad company had not been indebted to Gesterding since December 6, 1897, and that no property of Gesterding had come into its hands since that date, which remained in its hands or for which it remained liable at the time of the last writ issued, but this allegation amounts merely to a repetition of the denials of the answer already on file, and without some further allegation showing that it would become material to the garnishee to prove the former judgment, the further answer as framed would introduce irrelevant matters and confuse and embarrass a trial of the real issues between the parties. There is no allegation in the further answer that the railroad company now had, or that plaintiff claimed it now had in its hands any property that was involved in the issues tried in the former garnishment, nor was there an allegation that the issues in the former garnishment embraced any indebtedness which was sought to be reached by the last writ. It is true there is a general allegation that the judgment in the former garnishment was rendered “upon the same cause of action as herein,” but this is a mere legal conclusion supported by no allegation of fact. But even if we treat such allegation as one of fact, the answer will still be bad for the niere fact that it has been judicially determined that two years before the present suit the property or debt now sought to be subjected was not then liable to garnishment would not demonstrate that such property is not now liable. The answer does not show that in the former suit the money or property now sought to be subjected was adjudicated not to be the property of Gesterding, nor that any issue was presented and determined in that suit which would defeat the plaintiff in the present one. The issues in the two suits were not necessarily the same and there is no allegation in the plea to make them such. The judgment set up might be pertinent evidence upon the trial of the issues in the last suit when connected with other evidence, but as pleaded it constituted no bar. See authorities cited in the next paragraph of this opinion. The court should have refused permission to file the further answer.

II. The testimony shows without contradiction that Neumann in making the deposit of $2,100, with the railroad company acted as the agent and used the money of Gesterding, and that the draft drawn by Neumann in favor of Carstens was originally given to the latter as Gesterding’s agent. Though it was subsequently redelivered to Carstens by Sillem another agent of Gesterding for the purpose of collection and to pay himself a sum from the proceeds, the railroad company has never accepted the draft or in any way become liable to pay it. Unless, therefore, the draft operated as an assignment of the deposit of money to Carstens, its possession by the latter would not affect plaintiff’s right to garnish the money deposited with the railroad company. There is no suggestion in the testimony that the deposit was ever assigned to Carstens unless the draft alone operated as an assignment. That it did not is clear from' the terms of the negotiable instruments law which was in force when the draft was executed. See section 127, chap. 4524, act approved June 1, 1897; sec. 211 Crawford’s annotated Neg. Insts. Law (2nd ed.); Eaton & Gilbert on Commercial Paper, sec. 133, p. 578.

In the statement of facts we have shown that the judgment and certain other parts of the record in the former garnishment proceeding were introduced in evidence by the garnishee. These documents do not appear in the evidentiary or ordinary bill, but the further answer under which they were introduced purports to give the substance of the pleadings. The answer of the garnishee under our statutes as we have shown is very general in its terms, simply denying indebtedness and the possession of property subject to the writ, and under it many issues may be litigated. It is sufficient to raise an issue as to whether the garnishee is in fact indebted, or whether in fact he holds property of the defendant, as well as to raise an issue as to the liability to garnishment of a debt due or property held by the garnishee, and as the scope of the issues that may be litigated under such an answer is so broad, the court can seldom ever know from a mere inspection of the record proper the precise issues upon which a judgment for the garnishee was based. It becomes necessary, therefore, in such cases to ascertain from other evidence the precise issues determined when such judgment is pleaded or shown in evidence in another action, because the effect of the record of the judgment alone is merely that the garnishee owed no debt, and had no property in his possession which were subject to garnishment when the writ was served, or the answer filed, and between these dates. The testimony here shows that at the time the former garnishment was served the garnishee had in its hands phosphate rock which was either Neumann’s or Gesterding’s; that thereafter (whether before or after the garnishee answered is not shown), Neumann as Gesterding’s agent deposited with the garnishee $2,100, in order tó procure the release of the phosphate rock. The evidence does not show any of the testimony introduced upon the former trial, nor what defense was in fact relied upon at that trial, nor that the money now on deposit was or could then have been in issue. It is shown that the money was when the present writ issued in the hands of the railroad company and liable to garnishment, and there is nothing to show that at the time the answer in the former suit was filed, this money was then in the hands of the railroad company, nor that it was in any manner made an issue in that suit. In Little v. Barlow, supra, it was held that in order to sustain the contention of res adjudicata, the complete record in the former suit including the judgment therein should be produced, and not incomplete or detached portions thereof, and that if the matter in issue in the former suit does not appear upon the face of the record offered as evidence of such former adjudication, it may be shown by extrinsic evidence. While there is some conflict among the authorities the better rule, supported by reason and the weight of authority, constrains us to hold that if it appears from the record of a former judgment offered in evidence as an estoppel that several distinct matters may have been litigated upon one or more of which the judgment was rendered, the whole subject-matter of the action will be at large and open to a new contention, unless the uncertainty be removed by extrinsic evidence showing the precise point involved and determined. DeSollar v. Hanscome, 158 U. S. 216, 15 Sup. Ct. Rep. 816; Sawyer v. Nelson, 160 Ill. 629, 43 N. E. Rep. 728; Lewis v. Ocean Nav. & Pier Co., 125 N. Y. 341, 26 N. E. Rep. 301; Russell v. Place, 94 U. S. 606; Chrisman v. Harman, 29 Gratt, 494; Dygert v. Dygert, 4 Ind. App. 276, 29 N. E. Rep. 490; Ryan v. Potman, 62 Ill. App. 134; 2 Black on Judgments, sec. 629; 1 Freeman on Judgments, sec. 276. Testing the facts of this case by the rule of law announced above the former judgment does not operate as an estoppel so as to prevent the plaintiff from subjecting the money deposited with the railroad company to the present writ of garnishment. The verdict was, .therefore, not supported by the evidence and the court erred in refusing the motion for a new trial.

The judgment is reversed and a new trial granted.

Maxwell and Cockrell, JJ., concur.

Taylor, C. J., and Shacklefford, J., concur in the opinion.

Hocker, J., not sitting.