Simpson's Administrator v. Potter

18 Ind. 429 | Ind. | 1862

Davison, J.

William Simpson, while in life, sued James Owen and Samuel PH. Smith, upon a promissory note for the payment of 117 dollars. At the commencement of the suit, viz: on the 29th of March, 1860, the plaintiff filed an affidavit, alleging, inter alia, that James Owen, one of the defendants, had disposed of his property, subject to execution, with intent to cheat, hinder, and delay his creditors, and that to defraud them he had left the State. Upon the affidavit, an order of attachment was duly issued against the defendant. And further, the plaintiff having made affidavit “that he had good reason to believe that George W. Potter was indebted to Owen,” a summons was issued against Potter as garnishee. To this summons, Potter, on the 19th of January, 1861, answered, in substance, as follows: “The respondent, as garnishee, was served with process on the 30th of March, 1860. At that date, he was indebted to Owen by five several promissory notes, amounting in the aggregate to 490 dollars. On the 13th of April, 1860, Anna Owen, the wife of said James Owen, (he having abandoned her, and left the State,) commenced proceedings under an act approved March 7,1857, to subject his property to her support, &c., and caused process to be served on this respondent. Upon these proceedings a decree was rendered, by the Knox Common Pleas, whereby the notes, executed by him to Owen, were ordered to be sold, and were accordingly offered for sale, and purchased by one Samuel Judah, as trustee for Anna Owen. One of said notes is now due, and Judah, as such trustee, is prosecuting an action in said Court against the respondent, to recover the amount due thereon,” &c.

The defendants, Owen and Smith, having failed to appear, were regularly defaulted. And thereupon the cause was submitted to the Court, who, as to Owen and Smith, found that they were indebted to the plaintiff 1597%% dollars. And as to Potter, the Court found, that he, as garnishee, was not liable. The plaintiff moved for a new trial; but the motion was overruled, aud he excepted. Judgment was rendered in accordance with the finding, &c.

As has been seen, Potter, when the- summons in garnishment was served upon him, was indebted to Owen by five several promissory notes, and that afterwards, and before he filed his answer, as garnishee, the notes were, in virtue of legal proceedings instituted by Anna Owen, sold to Samuel Judah, who, upon one of them, has commenced suit. Hence, the question to settle is, was Potter, as such gaimisheee, liable to the plaintiff on said notes, to the amount equal to his reeovery against Owen and Smith ? We have a statute which says, that “from the day of the service of the summons, the garnishee shall he accountable to the plaintiff in the action, for the amount of money, property, or credits in his hands, or due and owing from him to the defendant.” 2 R. S. p. 68, sec. 176. This statutory rule, when applied to the case at bar, seems to be conclusive. There are, however, decisions to the effect, that the rule does not apply where promissory notes, executed by the garnishee, and negotiable by the law-merchant, have been transferred after “the service of the. summons.” Junction R. R. Co. v. Cleaney, 13 Ind. 162; Stetson v. Cleaney, 14 id. 453. But in this case, the notes, upon which the garnishee was indebted, were not so negotiable, and were, at the time the summons was served, the property of the defendant, in the attachment. The result is, the garnishee is “accountable to the plaintiff in the action.” Drake on Attach. 2 ed. p. 522, et seq.; Burril on Assign. 362, et seq.

John Baker, for the appellant. Samuel Judah, for the appellee. Per Curiam.

The judgment in favor of the garnishee is reversed, with costs. Cause remanded.