42 Miss. 270 | Miss. | 1868
delivered the opinion of the court.
The defendant in error, as administratrix de looms non, with the will annexed, of William S. Jones, deceased, on the 26th day of May, 1866, sued out an attachment against the goods and chattels, rights and credits, of Philip Botehford and Sheperd Brown, survivors of the late firm of Botehford, Brown & Co., for the sum of $3,116.03, returnable into the Circuit Court for the Second District of Hinds county. And the plaintiff in error was summoned as garnishee, to answer what he was indebted to the defendants in the attachment, or what effects of the defendants he had in his hands, or what effects or debts of the defendants there were in the hands of any other person to his knowledge or belief.
The plaintiff in error appeared in said Circuit Court on the 13th day of August, 1866, and answered that he was not indebted to the defendants in the attachment, or either of them, nor was he indebted to them or either of them at the time of the service of the writ of garnishment. That some time in the month of March, 1861, he was indebted to Botehford, Brown & Co. in the sum of $4,470.37, for which he executed three several promissory notes, payable to said Botehford, Brown & Co., or order; that on the 22d day of May, 1866, he had notice that one- of said notes, for $1,594,89, had been transferred to one E. K. Converse, and was informed by said Sheperd Brown, in said month of May, that all three of said notes had passed out of the hands of said firm of Botehford, Brown & Co. in settlement of their debts to their creditors, before the service of the writ
The record shows that the court rendered judgment against the plaintiff in error, on the answer and proofs filed in the cause, for the sum of $3,205.45. From which judgment the cause comes here upon writ of error.
No exceptions appear to have been taken to the legal sufficiency of the answer, which is conclusive until controverted by the plaintiff in the attachment; which does not appear to have been done in this case, and until the answer is controverted and an issue thereon to the jury, no testimony could properly be received to contradict the answer. The court erred in this state of the case in receiving testimony against an answer which was conclusive until controverted in writing, and which would not, independently of the improper evidence received, justify the judgment rendered against the plaintiff in error. Ilis answer, though defective and inartificially drawn, contains a. substantial denial of indebtedness. In the case of Gordon v. Coolidge, 1 Sumner, 537, the court says “ that where the garnishee neither admits nor denies his liability, but states all the-facts, and leaves the court to decide the matter of law arising thereon, there can be no judgment against him, unless there clearly appear o.n the face of those facts sufficient to justify the court in pronouncing such judgment. If it be left in reasonable doubt whether lie is chargeable or not, he is entitled to judgment in his favor.”
The plaintiff in the attachment having waived her right to an issue before a jury to inquire into the true facts of the case, the court is bound to take the answer to be true, and as embracing the real facts of the case; and as that denies the garishee’s indebtedness to the defendants in the attachment, and it not appearing by the record that the answer was excepted to for insufficiency, or the truth of it questioned in the maimer required by the statute, the judgment against the plaintiff in error was erroneous.
The judgment is reversed and the cause remanded.
