29 Iowa 137 | Iowa | 1870
If plaintiffs were not the owners of the piano, and if the instrument given therefore to Brink was not assigned before the judgment against the garnishee, it follows, almost, if not quite, necessarily, that such judgment would be a complete defense to this action. It is not claimed in the petition that plaintiffs were the real parties in interest, otherwise than by such ownership or assignment, before said judgment. The answer, instead of denying the ownership or assignment, says that defendant has not knowledge or information sufficient to form a belief. This form of denial presented a material issue. Rev. § 2880; and see McFarland, Dodge & Co. v. Lester, 23 Iowa, 260; Manny & Co. v. French, id. 250. It was error,
If defendant had had knowledge of plaintiffs’ claim before answering, or if this certainly was before judgment against the garnishee, assuming the facts to be as plaintiffs claims, there would be no question as to the rights of the parties, for clearly the claim would not be liable for the debts of Brink. What then is the effect of this judgment, rendered under the circumstances stated in the answer ?
It is said that the garnishee was not made liable, nor is not now, by this judgment, because the paper or instrument evidencing the indebtedness was not delivered, üor he indemnified from all liability thereon, after satisfying the judgment, as required by law. Rev. § 3211. Our opinion is, that these matters might have availed him if he had interposed them before the recovery against him, or perhaps might now, if in a proper manner he should urge the same. But they do not, under and according to the statute, go to the power of the court to render the judgment, so far as to avail a third or other person, when insisted upon in the form and manner here presented. Then, too, whether the instrument was or was not surrendered, does not appear. It is averred that
The cases of Walters v. Insurance Co., 1 Iowa, 404, and McCoid v. Beatty, 12 id. 299, fairly recognizes the doctrine, that the holder of a note, assigned after maturity (or of even non-negotiable paper whether assigned before or after due), should give the maker notice of such assignment ; and if he fails to do sc* before judgment against him, as garnishee, at the suit of a creditor of the original payee, such judgment would bar an action on the note in the name of the assignee. By reference to these cases, it will be seen that they never met my unqualified approval, for I dissented in the first and concurred in the second, upon the ground of precedent and from the doctrine of stare decisis.
Leaving these cases, however, undisturbed, we rule this
It will be observed that the answer does not aver that he has ever had this opportunity to show cause. And it must not be inferred from any thing heretofore said that we regard the answer as setting up a judgment awarding execution after such opportunity. The case, under the garnishment proceeding, as we understand it, remains as the law requires it shall stand when the garnishee fails to make answer — a judgment interlocutory in its nature— without right or ability to enforce it until notice to the garnishee and an order for execution duly obtained.
It is therefore held, that, as under the statute the defendant has still an opportunity to be heard against the enforcement of the judgment in favor of Kimball, as it has not been paid, and as he has notice of plaintiff’s claim in time to thus protect himself, the garnishment proceedings do not bar this action. This ruling cannot be regarded as in conflict, or as overruling, the cases before cited in 1 and 12 Iowa, as the question here made did not arise there. Then, too, we intimate no opinion in a case where the execution had been ordered before notice of the transfer, after opportunity to show cause had been given, though the judgment remained unsatisfied. That case is not before us.
Because of the matter noticed in the first part of this opinion, the judgment below must be reversed. In conclusion we remark, that good practice and safety to the rights of all concerned would suggest the propriety of making Kimball, and possibly Brink, parties to this action.
Reversed.