Williams v. Housel, 2 Iowa 154

Williams v. Housel

2 Iowa 154 | Iowa | 1855

Woodward, J.

In our opinion, the District Court erred in charging the garnishee in this stage of the proceedings. *156The plaintiff assumes a principle which, cannot be assented to at once: that is, that the garnishee is presumed, in the process of garnishment, to be indebted, or to hold property. This is no more presumed of him, than of a defendant. A judgment is rendered on default, not on such a presumption, but because a default is an admission. In this proceeding, the plaintiff is to show the garnishee’s liability; and this is done, either by his answer, or, under our statute, by forming an issue on the answer, and showing it by other proof. But there is a state of circumstances, in which the presumption may be against him. If there be a material matter which he is bound to know, to ascertain, and to state, and he leaves it doubtful, or unexplained, the presumption is against him. But this applies only to a fact which he can know definitely, and is bound to know, and which relates directly to his liability. But this rule does not apply to the leading fact in this case. The plaintiff urges that Housel, the garnishee, has shown, in his answer, that he holds property to the amount of five hundred dollars, more than he is liable for. The facts on this point are thus: Housel answers that the plaintiff’s suit was brought for about one thousand dollars and costs. He may be bound by the statement of one thousand dollars; but the costs were a matter which he was not bound to know. Again, he is not to be bound by his estimate of the property; for, first, the sheriff’s attachment is a more certain guide, being made under oath by an officer, and under some kind of an appraisement, as is to be presumed; and, second (which is the principal consideration), his liability depends, not upon his estimate of the property, but upon the result, as to whether it discharges the plaintiff’s claim, and then leaves a surplus. He has a right to require that this should be ascertained with certainty, before he is charged, and that it should not rest upon his conj ecture or estimate, and this he cannot know, for it depends upon a sale of the goods. The subsequent arrangement, that he should proceed to make sale of the goods, is not to be construed as a new and independent contract, but as under the mortgage, he *157holding the proceeds subject to the attachment previously made.

But again, the usual condition of a delivery bond (which we assume this to be), is, that the property shall be forthcoming, or the value of it paid. Then Housel, having possession of the property, would have a right to deliver it to the sheriff when he should come with an execution. Supposing he should do this, what then becomes of the garnishment? And if the bond were to pay the judgment absolutely, he could not be charged, at least, until the certainty and extent of his liability was ascertained. It is to be remembered, that the garnishee’s liability is to be measured by his responsibility and relation to the defendant; that his rights are to be regarded; and that he is to be charged only in consistency with, and subject to, bis contract with the defendant. It would have been competent for the court, we suppose, to continue this part of the case on application from either side, until further proceedings in the prior attachment, disclosed whether anything remained in the hands of the garnishee, and to permit or require a further answer, showing the result. The foregoing views are sustained, we think, by the books and authorities, which may be referred to without enlarging. See Drake on Attachment, and authorities, chapters 22, 24, 25, and §§ 675, 676, chapter 35, and the cases cited by plaintiff’s counsel, mean nothing different. See Bebb v. Preston, 1 Iowa, 460.

It is further objected, that the court erred in rendering judgment for costs against the garnishee. We understand this judgment to refer to the costs in the suit of the plaintiff’s against Bobbins & Co. If this is so, the court did not err, in case he was chargable at all, and had sufficient in his hands to cover the costs.

A further objection is, that the court erred in rendering judgment finally against the garnishee, before Bobbins & Co. were brought into court. The judgment against Housel, states that a judgment had been rendered against Bobbins & Co., and we will presume this to be regular.

We do not see our way clear to decide more than that the *158garnishee is not chargable in the present state of the ease. Therefore, the judgment of the- District Court herein is reversed, and the cause remanded.