Milliken v. Mannheimer

49 Minn. 521 | Minn. | 1892

Vanderburgh, J.

The first error assigned is that the court erred in ordering judgment against the garnishees upon their disclosure.

Upon full disclosure, the garnishees clearly admitted an indebtedness to the defendants in the action to the amount for which judgment was ordered at the time of the service of the garnishee summons. Undoubtedly, it must clearly and affirmatively appear by the disclosure that such indebtedness existed; but a denial of indebtedness is unavailing where the facts stated clearly establish it, since such denial may be based on an erroneous construction of the facts or the effect of the evidence. In this case the disclosure shows an indebtedness by the garnishees to the defendants in the action in a stated sum, for goods sold; but the evidence also shows that the gar-nisbees had delivered to them certain accommodation notes for a much larger amount, which were not yet due, and the witness did not know whether they had been discounted or not. It was then entirely uncertain whether the garnishees had incurred, or ever would incur, any liability on the notes.

(Opinion published 52 N. W. Rep. 139.)

Some courts adopt a very liberal construction in adjusting the matter of the liability of the garnishee, where there are mutual claims between him and the defendant, and hold that a liability of the latter to the garnishee, incurred before garnishment, and which becomes due before the disclosure, may be set off against the indebtedness of the garnishee in the proceeding against the latter. Other courts limit the right of set-off to claims due at the time of the service of the garnishee summons. Drake, Attachm. (7th Ed.) § 685, etc. But under either rule it is clear that no case for the allowance of a set-off is here made.

2. The report of the referee containing the disclosure was filed December 30, 1890. On February 24, 1891, on plaintiff’s motion, judgment was ordered thereon against the garnishees. An application by the latter to have the ease referred back to the referee for a further hearing and disclosure was also made, and, after a full hearing, denied by the court, on the ground that no case was presented warranting such relief.

The additional facts which the garnishees desired an opportunity to testify to were all known to them at the time of the original disclosure, and no satisfactory excuse appears for omitting to include the same in the evidence then taken. The garnishees supposed the additional evidence was unnecessary, because they were of the opinion that they were entitled to a discharge upon the evidence as it stood. This was no ground for the interposition of the court. They took the risk at their peril. In such case they could only appeal' to the discretion of the court, on the ground of mistake,. inadvertence, or excusable neglect; and this court would, in any event, only interfere with the decision of the trial court in case of an abuse of discretion, which was not the case here.

Judgment affirmed.