Smith v. Marker

6 Indian Terr. 213 | Ct. App. Ind. Terr. | 1906

Clayton, J.

(after stating the facts). An important question lying at the threshold of this case, and necessary to be decided, is: Was there any such indebtedness due, or to become due from the garnishees to the defendant John D. Marker, or any property or choses in action in their hands as was subject in this suit to the writ of garnishment?

The answer of the garnishee serves the double purpose of a pleading, and, as against him, of proof in the case. If it be uncontradicted it is prima facie evidence of the truth of'the facts stated within it, as between the parties to the suit. Shinn Att. & Gar. vol. 2, 621. “In any event, it is taken as full proof until it is contradicted by other evidence; and such judgment may be rendered thereon as is proper in the statement of facts which it contains.” Ib. 638.

In this case the answer and exhibits are all the proof there is, and, being undisputed, must be taken as true. And the motion, of the appellant, Smith, for judgment on the answer of the garnishees and exhibits is also an admission of the truth of the statement of facts contained in them. And the facts set up therein, in effect, are that John D. Marker, the judgment debtor, was an adopted citizen of the Cherokee Nation; that being desirous of obtaining his allotment of his share of the Cherokee lands in excess of his homestead, which he had already selected, and being a poor man without sufficient means for that purpose, on the 9th day of June, 1904, he entered into a contract with Halsell and Bagby, the garnishees, that they were to advance the necessary means, and without 'expense to Marker, secure for him “the privilege of allotting the land,” 130 acres, at some place in the Cherokee Nation to be selected by them, the land to be of the reasonable market value of $1400; that this being done, Marker obligated himself to select the same for his allotment, exclusive of his homestead, and Marker, being desirous of converting this land into cash, agreed to sell the same to the garnishees as soon as it could be done, for $1400. Seven hundred dollars was to be paid after the land was selected and a deed conveying the same to the garnishees should have been executed by Marker, and the balance of the purchase money was to be paid “on the expiration of the period when his filing on the said land may be contested shall have expired” and title thereto perfected in him (Marker). About three months after the execution of this contract, on September 24, 1904, Marker and wife executed their warranty deed and relinquishment of dower, conveying to the garnishees the tract .of land described, and. presumably receiving the $700, which, according to the contract, was to be paid at that time, leaving a balance of the purchase price due of $700, or, as stated in garnishees’ answer, of $625; the difference not being accounted for. It is this balance that is garnished. This sum, however, was not to be paid until the period of contest should have expired, and only in the event that title should be vested in Marker. Title could not be thus vested until -the expiration of the period of contest, which is fixed by the answer as being March 14, 1905. The judgment dismissing the garnishment was entered’ on January 4, 1905. And so it will be seen that the contract, the deed, the issuance of the writ of garnishment, its service, the answer of the garnishees, and the judgment of the court were all before the period of contest had ended, and, therefore, even as late as the judgment in the case, it could not be known whether or not the assumed debt sought to be garnished would ever be a debt at all. It depended upon a contingency that might defeat- it, and therefore the debt, if it can be so called, was not absolute.

“When the indebtedness is contingent upon the happening of some future event, so that it is uncertain whether the contemplated garnishee will or will not be indebted to the principal defendant, a garnishment process will not’ be competent to secure such contingent sum for the use of the plaintiff, so long as the contingency lasts.” Shinn on Att. & Gar. § 481. See, also, the numerous'cases cited by the author in footnote 1 to the said section. It is true that under our statute (Mansf. Dig. § 3412 (Ind. Ter. Ann. St. 1899, § 2346) a debt which is to become due is made liable to the process of garnishment, but it must be an absolute, existing debt. “Some statutes require that the debt must be due and payable at the present time, in order that it may be made the subject of a proceeding-in garnishment, while others permit a debt which is to become due in the future to be so made liable; but it is a universal requirement that it must be an absolute, existing debt, even though the period of its payment may not yet have arrived.” Shinn, Att. & Gar. § 480, and authorities cited in footnote 5; Drake on Att. (6th Ed.) § 28, and authorities cited. Testing this case by the unquestionable rule of the law, the debt was not absolute. It depended upon the contingency that the judgment debtor should be vested with title after the period of contest had ended. That that contingency did not happen before judgment in this case we know certainly. Whether it has happened since, or ever will, we are not informed.

The point is made that, as there were no exceptions saved at the trial on this ground, the question is not before us for our consideration. There were two exceptions saved at the trial: First, that the court erred in overruling plaintiff’s motion for judgment; second, to the action of the court in dismissing the writ of garnishment. No intimation is given us by the record as to the grounds upon which the court acted in overruling the motion and in dismissing the garnishment. There was no motion for new trial or bill of exceptions filed. One of the two assignments of error is that “The court erred in dismissing said order of garnishment and ruling that the said funds garnished were not subject to garnishment proceedings, and not allowing Smith judgment against the garnishees on their said answer.” We hold, in passing on this assignment, that the, court did not err either in dismissing the garnishment, or in its rulings that the debt sought to be garnished was not subject to garnishment. And this is conclusive of the case.

Entertaining this view of the case, we do not deem it necessary to pass upon the other question raised.

The judgment of the court below is affirmed.

Townsend, J., concurs. Raymond, C.. J., not participating.