96 Minn. 499 | Minn. | 1905
Lead Opinion
The plaintiff, Mathias Pitzl, held a judgment, entered September 28, 1895, for $769.07 against defendant George Winter. In May, 1904, defendant’s father, John Winter, died, having left a last will and testament, disposing of property appraised at $11,717, of which amount $400
The garnishee, as a part of his disclosure, called his brother, defendant George Winter, as a witness, and attempted to show by him that it was verbally understood between himself and his father, John Winter, during his lifetime, that the $200 and $500 notes, above mentioned, which had been filed with the probate court, were in fact executed by John Winter for the accommodation of defendant, and that it was verbally agreed between them that, if George did not pay the notes and they were paid by the father, then the amount thereof should be offset
1. A garnishee does not become charged with respect to the debt- or’s property in his hands at the time of the service of the garnishee summons until judgment is rendered against him upon his disclosure, pursuant to an order of the court. The garnishee summons confers no more than an inchoate lien. Langdon v. Thompson, 25 Minn. 509. The liability of the garnishee is determined from the evidence taken at the disclosure, and the statutes provide for pleadings and a trial where liability is denied, and, when fairly construed, intend that other testimony than that of the garnishee is receivable at the disclosure for the purpose of corroborating or explaining the testimony of the garnishee, or of developing facts additional to those disclosed by him. Section 5323, G. S. 1894; Leighton v. Heagerty, 21 Minn. 42. The executor was authorized to call upon other witnesses, or evidence, to explain and to prove that, while it appeared that he might have under his control certain moneys belonging to defendant George Winter, yet in fact the estate did not owe him anything. If the disclosure amounted to a denial on the part of the executor that there was any money or effects in his possession or control belonging to defendant, and the plaintiff did not believe the garnishee had made a true disclosure, he was at liberty to proceed under the provisions of section 5319, G. S. 1894, for permission to file a supplemental complaint and have a trial to test the facts.
2. “Interested in the event thereof,” as used in section 5660, means a direct and immediate pecuniary interest adverse to that of the party against whom his testimony was offered. Bowers v. Schuler, 54 Minn. 99, 55 N. W. 817; Lowe v. Lowe, 83 Minn. 206, 86 N. W. 11. It is evident that George Winter was interested in the issue between the parties, although not a party to the garnishee proceedings. Manahan v. Hal
We have not been able to find any authorities from other states having a similar statute which support the rule contended for. The statute has always been strictly construed by this court, upon the theory that its main object was to prevent possible fraud when one of the parties had been removed by death. Its terms are broad, and contained nothing to restrict their application, and in view of the evolution of the subject evidenced by the growth of the statute from preceding enactments (Chadwick v. Cornish, 26 Minn. 28, 1 N. W. 55) the intention was manifest to make no distinction in favor of the estates of deceased parties. Although George Winter testified to the effect that his father had signed the $500 note as a surety, yet it is not permissible to assume that he was testifying to a fact when giving an account of the arrangement with his father:
Q. Did you make any promises at that time to your father, John Winter, about this note, as to whether it should be paid or otherwise? A. Yes; I did. I promised him that, if Lcould not pay it, it was to be taken out of my share of the estate.
The same question and answer were given with reference to the $200 note. The suggestion that this amounted to no more than a statement of fact, and did not necessarily refer to a conversation, is covered by Madson v. Madson, 69 Minn. 37, 71 N. W. 824, where it was held not permissible to state, in the form of conclusions of fact, the result of a
It was error to receive the testimony of George Winter, and the order appealed from is accordingly reversed.
Dissenting Opinion
(dissenting).
I dissent. Section 5660, G. S. 1894, is an exception to the general rule as to the competency of witnesses and must be strictly construed. It should not be extended to cases not within its letter and spirit. Chadwick v. Cornish, 26 Minn. 28, 30, 1 N. W. 55; Livingston v. Ives, 35 Minn. 55, 27 N. W. 74; Parker v. Maxwell, 51 Minn. 523, 53 N. W. 754; 1 Wigmore, Ev. § 578. The object of the statute is to protect the estates of deceased persons. Therefore the calling of a party as a witness by an executor to establish a claim against such party in favor of the estate he represents is not within the spirit of the statute; hence it is an implied exception thereto. 30 Am. & Eng. Enc. (2d Ed.) 1060; State v. Barge, 82 Minn. 256, 84 N. W. 911; White v. Thomas, 91 Minn. 398, 395, 98 N. W. 101. If the rule laid down in the majority opinion is adhered to, it will result in many cases in a grave miscarriage of justice. Thus, an executor may be satisfied that a party owes the estate he represents a large sum of money; but the evidence to prove the demand is a conversation between the debtor and the deceased. The executor brings his action and calls the debtor for cross-examination to prove his case; but the debtor may, according to the decisions of this court, object to testifying to conversations with a deceased party by virtue of the statute, remain silent, and cheat the estate out of its just demarnd. Can it be possible that the statute was intended to and does invite and justify such rascality? Was not the statute intended as a shield for the protection of the estates of deceased persons, and not as a sword to strike them down?
But, this aside, I am of the opinion that the evidence which was received without objection in this case was ample to sustain the order of the trial court. The executor, the garnishee, claimed that the estate he represented had an offset to the legacy left‘to the defendant in the principal action, which was based upon the alleged fact that the deceased had signed notes as his surety which had been filed as a claim against the estate of the deceased. To sustain his claim the executor called as a witness the defendant, who testified without objection to the ultimate