Little v. Nelson

61 Miss. 672 | Miss. | 1884

Coopee, J.,

delivered the opinion of the court.

The appellee sued out an attachment against one D. S. Hurlbut, and summoned the appellant and numerous other persons to answer as garnishees. The appellant answered, denying that he was indebted to the defendant in any sum or that he had any of the effects of said defendant in his hands or possession, and further stated that he knew of no other person indebted to the defendant. E[e failed to state that he was not indebted to the defendant' at the time of the service of the writ of garnishment. The appellee, without objecting to the answer for insufficiency or averring that the garnishee was indebted to the defendant at the time the writ was served, moved for and obtained judgment for want of a full answer. It is contended by the appellee that because of the failure of the garnishee to answer in strict conformity to the statute, she was entitled to take judgment for the amount of her debt against the defendant under § 2446 of the Code, which provides, “ when any garnishee duly summoned shall fail to appear and discover, as by this chapter directed, the court shall enter a judgment against him for the amount of the demand and all costs, .and such judgment shall be final unless cause be shown to the contrary during the same term.”

Where a person is summoned as garnishee and fails to appear and answer the writ, the law proceeds on the presumption that he admits a debt to be due by him to the defendant equal to the sum of the plaintiff's demand, and on this assumption permits a judgment to be taken against him; but when he appears and files an answer by which it is apparent that his purpose is to deny the existence of a debt and to deny his possession of property of the defendant, but if the answer is inartificially drawn or fails to strictly conform to the statutory requirements, the plaintiff cannot be permitted to strike the answer from the files or to ignore it and take judgment for his'debt.

If he desires a fuller disclosure, he may, by proper objections to the answer, compel the garnishee to amend it; and if he fails or refuses to amend when his attention is called to the defect, he will be treated as electing to stand by the answer as made, and his liability will be tested by its terms.

It was, however, not intended .by the statute to place garnishees upon any less favorable footing in the courts than are other defendants, nor to fix them with liability because of a slip in answering. We must construe the statute on this subject in the light of other provisions in the code on the subject of pleadings and practice. The same liberality must be extended to the garnishee, and a judgment ought not to be rendered on an answer where, if the same matter was stated in a plea, the plaintiff would be required to reply or demur. The defect in the answer of the garnishee consisted in his not negativing the fact of indebtedness or possession of property of the defendant at the time of service of the writ or, in the interval between such service and the filing of the answer. The denial of liability because of no indebtedness at one time is explicitly shown, but there is a failure to exclude liability because of the facts existing at another.

In the recent case of Columbus Insurance and Banking Company v. Harsh & Loenstein, ante 74, it was held that the creditor was entitled to subject to his demand any sum which the garnishee might owe to the defendant at any time before the third day of the term to which the writ was returnable, but that where an answer had been filed before the commencement of the term, the plaintiff could not take judgment on the ground that the answer did not exclude the fact of indebtedness during the whole time in which the answer might have been filed, but that it devolved on the plaintiff to move for a further answer, and that the garnishee must be allowed a fair opportunity to amend his answer. For the same reason the plaintiff here should have required a more specific answer if she had reason to believe that the garnishee was endeavoring to suppress facts.which showed his liability, but ought not to have treated the answer as a nullity.

The judgment is reversed.