Prudential Trust Co. v. Merchants' Nat. Bank
133 P. 1191
Or.
1913
Check Treatment
Mr. Justice Bean

delivered the opinion of the court.

1. The garnishee contends that the evidence does not sustain the findings made by the trial court. Section 319, L. O. L., provides that the issues in such a proceeding shall be tried as ordinary issues of fact. The ownership of the funds was the only issue raised. The burden of proof was upon the plaintiff.

2. In an action at law, tried by the court without a jury, the findings of the trial court are equivalent to the verdict of a jury: Section 159, L. O. L. In such a case, this court upon appeal will examine only the testimony in order to ascertain if there is any competent evidence to support the findings. If there is such evidence, the findings cannot be disturbed: Savage v. Salem Mills Co., 48 Or. 1 (85 Pac. 69, 10 Ann. Cas. 1065); Singer v. Pearson-Page Co., 58 Or. 526 (115 Pac. 158); Giaconi v. City of Astoria, 60 Or. 12, 29 (113 Pac. 855, 118 Pac. 180). In the determination of this question all the evidence should be considered, as the plaintiff is allowed the benefit of any evidence introduced by the adverse party: Morrison v. Franck, 59 Or. 429, 435 (110 Pac. 1090, 117 Pac. 308); Dryden v. Pelton-Armstrong Co., 53 Or. 418, 421 (101 Pac. 190).

*2283. It appears from the record that at the time of the garnishment, and for a long time prior thereto, the defendant deposited funds with the garnishee in the name of “J. J. Metzler, Agent”: See Proctor v. Greene, 14 R. I. 42. The garnishee by its answer disclosed no knowledge of any principal, nor did the defendant in his testimony, except by alluding in a vague and general way to several persons with whom he did business. He did not state to whom the money belonged. He testified in regard to the deposits as follows : “I probably bought some hops for some firm and went into the bank and drew the amounts with a draft on the parties, whoever they went to.” He does not appear to have dealt with the funds as belonging to any particular person other than himself. A fair estimate from his statement as to his commission received indicates that there was in the bank at the time an amount in excess of the judgment belonging to him for commission. His testimony is very vague and indefinite, and is not a complete disclosure of the transaction. The fact that he was in possession and control of the money, and used it indiscriminately for his own purposes, and the further fact that, in any event, a large amount of the deposits belonged to him as his commission, together with the other circumstances of the case, have great probative force, and in our judgment are decisive evidence of title: Silsbee State Bank v. French Market Grocery Co., 103 Tex. 629 (132 S. W. 465, 34 L. R. A. (N. S.) 1207). This evidence was not overcome in any manner. From the evidence the trial court, acting as a jury, might reasonably conclude that the money belonged to the defendant Metzler, and that the word “agent” affixed to.his name was only a subterfuge on his part to keep his funds from being attached by his creditors. The Merchants’ National Bank, garnishee, alleged and showed, and the trial *229court found, that when the bank was garnisheed, defendant Metzler owed the garnishee about $1,500 on demand notes. It appears from the answer of the latter that between the 1st and 11th of November, 1911, seven deposits were placed in the bank by J. J. Metzler, amounting to $9,830.52, and that during the same time 13 checks were paid to the order of “J. J. Metzler, Agent,” amounting to $3,919.87.

4. The claim of the garnishee that the funds should be applied to the payment of the notes of Metzler is inconsistent with its denial that it had any funds belonging to this debtor: Jackson v. Bank of United States, 10 Pa. 61, 67. We will pass that question, however. It is a general rule that the garnishee may set off, against the debt due to the principal debtor, whatever demands the garnishee might have set off against such debtor himself had the latter sued the garnishee: Nutter v. Framingham & Lowell R. R. Co., 132 Mass. 427, 430. The bank had the right to apply the funds in its hands at the time of the garnishment, belonging to Metzler, to the payment of a debt due from the latter to it, had it manifested a desire to do so by its pleading and proof. But it had no right to pay such funds to the order of Metzler during the garnishment proceedings and such payment was at the risk of the bank. It seems that the bank disclosed the facts affecting its liability to Metzler as fully as they could be ascertained from him. As between the attaching creditor and the judgment debtor the garnishee should occupy a disinterested position, and hold the money or property garnisheed until the matter is adjudicated or the attachment is discharged: Archer v. Whiting, 88 Ala. 249 (7 South. 53); Drake, Attachment (7 ed.), § 453. The bank waived the privilege of applying the funds upon Metzler’s notes by paying bi-m the same during the pendency of the garnishment *230proceedings. By so. doing it clearly indicated that there was no intention on its part to do so, and no agreement or understanding with Metzler that such application should he made, thereby eliminating that question from this case.

By the bank simply holding a note against the debtor would not enable him to draw his money and defeat the attachment. The rule permitting the garnishee to apply funds in its hands to the payment of a debt due to such garnishee is for the protection of the latter, and cannot be made a shield for the judgment debtor. Section 320, L. O. L., directs that if by the answer of the garnishee it shall appear, or if upon trial it is found, that the garnishee, at the time of service upon him of a copy of the writ of attachment and notice of garnishment, had any property of the defendant liable to attachment, not admitted in the certificate, and to which the garnishee is required to certify, judgment may be given against the garnishee for the value thereof.

The evidence in this case fairly sustains the findings of fact. The judgment of the lower court will therefore be affirmed. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice McNary concur.