133 P. 1191 | Or. | 1913
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).
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
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.