Lewis v. Prenatt, 24 Ind. 98

Lewis v. Prenatt

24 Ind. 98 | Ind. | 1865

Frazer, J.

This was a proceeding against Lewis, as garnishee, He answered, denying all indebtedness, &c., at any *99time, to the principal defendant in the suit. To his answer the plaintiffs replied, in estoppel, that before the filing of the affidavit in garnishment, he admitted and represented to the plaintiffs that he had made a certain purchase of property of one Bingham, which really belonged to the principal defendant; and that a portion of the purchase money remained unpaid; and that if the plaintiffs would garnishee him, Laois, he would pay the same to the plaintiffs, by means of which, before Lewis paid such purchase money, the plaintiffs were induced to, and did, prosecute the proceedings in garnishment, &c. Lewis demurred to this reply; his demurrer was overruled, and upon this ruling error is assigned, and this is the only question arising upon the record of the court below. But, before proceeding to its consideration, there is a novel question of practice in this court which must be disposed of.

The appellee joins in error, and, after submission, pleads specially to the assignment of error, and in bar thereof, that, upon the trial below, Lewis was permitted to offer evidence that he was not indebted to the principal defendant,, whereby the plaintiffs were deprived of the benefit of their estoppel. The appellant moves to strike out this plea. The issue of fact which it tenders would involve an investigation here, to ascertain by oral proof what evidence was admitted, in the court below; and, as the record does not show any objection by the appellees to any evidence offered below by the appellant, in consequence of which we must presume-that no such objection was made, we have tbe appellee claiming here that he virtually withdrew his reply in estoppelThis course of practice has never, that we are aware of, been attempted in a court of errors. Eor what was done in the-court below, we must look only to the transcript of its record. Every part of its action can thus appear, if the parties avail themselves of the use of bills of exception; and. where this has not been done, it would be strange if the-omission can be supplied by making issues of fact here, upon the trial of which we are to learn what was done below. W& *100cannot inaugurate such a practice, and, accordingly, we direct the second paragraph of the appellees’ answer here to be stricken out. Indeed, we would do this on our own motion, or wholly disregard it.

We now come to the question in the record. The matter alleged by way of estoppel, falls very far short of being such. It consists merely of the admissions of the garnishee, and that the plaintiffs were induced thereby to commence their proceedings against him as garnishee. When, by the admission of a fact, which is not true, one draws another into a lino of conduct from which ho cannot recede, and which must result to his injury, if the fact be otherwise than it was represented, the party making the admission will not afterward be permitted to show the truth to bo otherwise, for the reason that he would thereby perpetrate a fraud upon the party whom he had misled.

It is difficult to see how the doctrine could apply against a garnishee, as such. He must answer under oath, and to estop him from answering truly would be to require him to commit perjury. And then the proceeding seems designed to enforce only the rights of the principal defendant against the garnishee, and apply them to the satisfaction of the plaintiff’s demand against him; and is not, probably, designed to enable the plaintiff to compel the performance of additional obligations which have arisen in his own behalf against the garnishee. But wo need not, and do not, place the present decision upon either of the grounds last alluded to. It is sufficient that the facts pleaded do not, at any rate, constitute an estoppel. The plaintiff parted with no right, and relinquished no security; he stood exactly as he did before the appellant made the representations to him, in all his relations with the whole world, except that he commenced his proceedings of garnishment, and thereby incurred costs. And the record informs us that the appellant at once offered, in open court, to repair the injury by confessing judgment for such costs. We think that the demurrer should have been sustained.

G. JE. Walker and II. G. Newcomb, for appellant. & Major, for appellees.

The judgment is reversed, with costs, and the cause remanded, with directions to proceed according to this opinion.