33 Ill. App. 141 | Ill. App. Ct. | 1889
The only question presented is, on whom was the burden of proof? The court below, in its instruction to the jury, assumed that the answer of the garnishee was to be taken as true, in the absence of proof. That the ruling was sound, is attested by a series of decisions in this State, which must control the action of this court. Kergin v. Dawson, 1 Gilman, 86; Ill. Central R. R. Co. v. Cobb, 48 Ill. 402; C. & St. L. R. R. Co. v. Killenberg, 82 Ill. 295; C. & St. L. R. R. Co. v. Hindman, 85 Ill. 521.
The traverse of the answer did not relieve the execution creditor of the duty of ¡moving what the garnishee declined to admit. If the answer was uncertain or insufficient in any material point, the court, on proper application, would have required a further answer. But having taken issue on the facts presented by the answer, the burden of proof remained on Otto.
Sec. 2, Chap. 62, prescribes the course to be pursued, when the fund in the hands of the garnishee is claimed by any other person; it provides that such claimant shall be allowed to appear and maintain his right, and if he does not voluntarily appear, notice shall be issued and served on him in such a manner as the court may direct. Here the parties claiming the remaining $400 of the price of the building never appeared, nor were they served with any notice to appear, and it may well be doubted whether the court could have compelled the garnishee to litigate the validity of their claims until they were so notified. The judgment is affirmed.
Judgment affirmed.
