Johnson v. Carry

2 Cal. 33 | Cal. | 1852

Justice Murray

delivered the opinion of the Court. This was an action brought by Johnson, the plaintiff, in the Court below, against B. Champlain and H. Brooks, upon a promissory note executed by them, made payable to one Williams, and by him assigned to the plaintiff. On the 12th of April, 1851, the plaintiff sued out an attachment against the defendant’s property under the statute of California, then in force; and served a copy of the affidavit and writ of attachment upon the firm of Carry & Co., as garnishees and debtors of the defendants. On the 21st of June, 1851, the garnishees were served with notice to appear on the 23d of June, before the District Court, and answer interrogatories. On the final hearing of the case, a judgment - was rendered in favour of the plaintiff against the garnishees for the sum of $276 88. From this judgment the garnishees appealed.

■ The first error assigned is, that that Court permitted testimony to be introduced of indebtedness from Carry & Co., to Champlain and Brook, on the 12th of April, 1851: and that no evidence of indebtedness prior to the 21st of June, (the date of the notice to appear and answer interrogatories,) was admissible. This objection is not well taken. The service of the affidavit and writ of attachment were sufficient to put the garnishees upon notice of the plaintiff’s demand; and any payment by them after that time was a fraud upon his rights. The service of the attachment raised an obligation between the plaintiff and the garnishees. The notice to appear and answer is only intended to prevent a surprise upon the parties; and the want of it at the time of service of the attachment is not material.

The second point relied on by the appellants, is, that the Court, on the argument of the case, rejected the testimony of one S. S. Brooks, on the ground of his interest. Brooks testified that the notes of Carry & Co., payable to Champlain & Brooks, had been assigned to him prior to the 12th of April, 1851; and had been paid to him by Carry & Co. The witness was not sworn on his voire dire; the record does.not show anything to prevent him from testifying; and his interest (if any), so far as is disclosed, is not sufficient under our statute to disqualify him. The appellants were entitled to the benefit of the testimony, however lightly the Court might have been disposed to consider it.

Judgment reversed; and new trial ordered.