*2681. The record discloses that after the jury had been impanelled and the case stated by counsel, the plaintiff claimed that, as the only issue in the case was one of payment, the burden of proof was on the garnishee, and that he should, therefore, submit his evidence first, which he declined and refused to do, whereupon the plaintiff moved for judgment on the pleadings, which was denied, and such ruling is assigned as error. The motion, under the circumstances, was properly overruled. There was an issue of fact presented by the pleadings for determination, and, while it remained undisposed of, no judgment could have been entered on such motion. If, as the case then stood, and the plaintiff now contends, he was entitled to a verdict, he should have moved the court to direct the jury to return a verdict in his favor, and not for a judgment on the pleadings.
2. As the court instructed the jury that the burden of proof was on the plaintiff to show that the garnishee had not, prior to the service of the- garnishment, paid for the property purchased from Holmes, it is proper to consider that question here. The allegations of the parties take the place and perform the office of pleadings in an ordinary action at law, (Smith v. Conrad, 23 Or. 206, 31 Pac. 398,) and, as we understand them, present but one issue of fact, and. that is whether the garnishee had, prior to the garnishment, paid Holmes for the property which he admits to have purchased. The answer of the garnishee not only admits all the allegations of the complaint, except the indebtedness, but affirmatively alleges that a short time before the service of garnishment he purchased of the defendant in the action the lands and notes mentioned in the complaint, at the agreed and *269stipulated price of five' thousand five hundred dollars, but alleges that he had wholly paid for the same prior to such time. The reply denied the allegation of payment, and thus raised the only issue of fact in the case. Upon this issue the burden of proof was clearly with the garnishee. The rule is well settled that when a defendant admits a cause of action set out in the complaint, and relies upon the defense of payment, the burden of proof is upon him to establish that fact: 2 G-reenleaf on Evidence, § 516; Curtis v. Perry, 33 Neb. 519 (50 N. W. 426); Wolffe v. Nall, 62 Ala. 24; Conselyea v. Swift, 103 N. Y. 604 (9 N. E. 489); Bradley v. Harwi, 43 Kan. 314 (23 Pac. 566). And this is the rule applicable to the proceedings against a garnishee who by his answer admits that he was indebted to the defendant a short time before the service of process of garnishment upon him, but claims that the debt was paid and discharged before that time. As is said in Waples on Attachments, (p. 377,) “The onus is upon him (the garnishee) when the plaintiff has taken issue upon the answer, after the admission that he held such funds at a period immediately, or within a few weeks or even months, preceding the service of the writ.” See also Drake on Attachments, §674; Barker v. Osborne, 71 Me. 69. It was contended at the argument that, under the form of the • allegations in this proceeding, the defense of payment could have been proven under a general denial, but this contention raises a question of pleadings not necessary to be considered at this time, for, even if the fact of payment could be shown under the general issue, it would not change the rule as to the burden of proof. Mr. G-reenleaf says, in the section cited, that in some instances the defense of payment may be made under the general issue, and in others it must be specially pleaded, but, *270“in either case, the burden of proof is on the defendant, who must prove the payment of money, or something accepted in its stead, made to the plaintiff or to some person authorized in his behalf to receive it.” We think, therefore, that the court below erred in holding that the burden of proof was on the plaintiff, and in so instructing the jury.
3. The objection to the testimony of the witnesses Walcott, Bryant, and Hume should have been sustained. That of the two former was to the effect that in November, eighteen hundred and ninety-three, Holmes, the judgment debtor and defendant in the action, stated to them that the garnishee had paid him for the notes and land mentioned in the pleadings. This statement was made after the service of the garnishment, and was, therefore, incompetent evidence against the plaintiff to show the fact of payment: Drake on Attachments, § 655; Warren v. Moore, 52 Ga. 562. The testimony of Hume, if otherwise competent, was too remote and uncertain to afford any legitimate inference that the garnishee had on hand at the date of the payment alleged in the answer the money with which to make such payment. The judgment of the court below is reversed, and a new trial ordered.
Reversed.
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