47 Pa. Super. 114 | Pa. Super. Ct. | 1911
Opinion by
The plaintiffs having obtained judgment against H. J. Muldoon, issued an execution attachment summoning Mary Muldoon and E. G. J. Cuff as garnishees. The court entered judgment against the garnishees upon their answers filed to interrogatories, which it held to be insufficient, and from that judgment both garnishees appeal. The answers of the garnishees were full and specific, in so far as they related to any direct dealings with the defendant, and explicitly denied that the garnishees had had any dealings with the defendant out of which any indebtedness to him arose or that they had in their possession any property belonging to him. The only transaction referred to in the interrogatories and the answers thereto upon which the appellee attempts to assert a right to the
We may first, for convenience, examine the answer filed by the garnishee Cuff. It may be well to observe that Cuff was summoned as garnishee in his individual right, and not in a representative capacity, as the trustee of Patrick Muldoon. His answer specifically asserted that he had never had any commercial transactions with H. J. Muldoon, had never been indebted to him in any manner and had never had any commercial or other transactions in which H. J. Muldoon had any interest, except that in which he, the garnishee, had been acting as the trustee of Patrick Muldoon; that as such trustee no property had come into his hands, except the mortgage hereinbefore mentioned, and that there was not in his hands, at the time of the service of the attachment, any balance, money or property to which H. J. Muldoon, the defendant, was entitled as one of the heirs of Patrick Muldoon. The answer further stated that the garnishee, as trustee, had not filed his account and had not been formally discharged by the court, but that the heirs of Patrick Muldoon had,
Now as to the answer of Mary Muldoon, as garnishee. The answer fully and distinctly negatived the existence of any direct debt or obligation to H. J. Muldoon. It did admit that she had at the time of the execution of the mortgage been indebted to Mark Burke, trustee for Edward Muldoon and Patrick Muldoon, in the sum of $3,400, which was secured by the mortgage in question; that Edward Muldoon had died in 1907 and Patrick Muldoon on December 14, 1909, and that H. J. Muldoon was one of the heirs of both decedents. But the answer went
“A garnishee’s answer is not to be construed with the same strictness as an affidavit of defense. A defendant, under our affidavit system, is bound to set forth every material fact necessary to his defense; and every fact not distinctly and positively averred is presumed not to exist. The affidavit must show prima facie that the defendant has a good defense to the action, otherwise judgment will be entered against him. But a garnishee is not bound to set forth specifically and at length the nature and character of his defense to the attachment. He is only required to answer the interrogatories that may be submitted to him:” Allegheny Savings Bank v. Meyer, 59 Pa. 361; Lancaster County Bank v. Gross, 50 Pa. 224. Judgment will not be entered against a garnishee upon his answers filed, unless those answers contain either a distinct admission of funds in'possession, or of such facts as leave the possession of such funds a mere inference of law: McGeary v. Huff, 31 Pa. Superior Ct. 401. If when Edward and Patrick Muldoon died the right to receive payment of this mortgage passed to their heirs, then the answer of the garnishee stating that the debt had been paid to the heirs and that the mortgage had been satisfied of record, prior to the service of the attachment, was sufficient, and it was error to enter judgment in favor of the plaintiff upon that answer. If, on the other hand, the interest of Edward Muldoon and Patrick Muldoon in the mortgage in question did not upon their deaths pass to their heirs, but ought to have been collected and distributed by their executors or administrators, then the judgment was equally erroneous. ' The interest of a mort
The judgment is reversed and a procedendo awarded.