Wyler, Ackerland & Co. v. Blevins, 113 Tenn. 528

Wyler, Ackerland & Co. v. Blevins

113 Tenn. 528 | Tenn. | 1904

Mr. Justice Neil

delivered the opinion of the Court.

Heretofore in this cause an execution was is sued, and by way of satisfying it a garnishment notice was issued, summoning G. W. Chandler to appear and answer touching his indebtedness to the defendant. He filed an answer which was indeterminate, indicating that he was probably not indebted to Blevins because of. cross-claims of an unsettled amount, but also conveying the implication that an ascertainment of the amount of the cross-claims might probably leave him indebted to some amount. A motion is now filed to set aside this answer, accompanied by an affidavit of the original defendant, Blevins, showing that the cross-claims are now capable of exact ascertainment.

We have numerous cases in this State (cited in a note to section 4831 of Shannon’s Code) holding that the an*530swer of the garnishee is conclusive. The section of the Code, however, referred to, changes, the rule as to amounts less than $1,000, and declares that the answer shall not be held conclusive as to such amounts.

The plaintiff in the execution is not bound by the answer in the present case, the amount being less than $1,000, and it is not necessary to strike the answer from the files. The proper practice, under the facts now developed, is to summon the garnishee before the court for a new examination. Jones v. Pearce, 12 Heisk., 281, 287; Moore v. Green, 4 Humph., 301; Pickler v. Rainey, 4 Heisk., 340; Foster v. Saffell, 1 Swan, 90. If necessary to a full determination of the matter, other evidence-may be heard. Shannon’s Code, section 4831. This court may conduct such an examination in aid of its final process. Newman v. Justices, 1 Heisk., 787; McIntosh v. Paul, 6 Lea, 45; Dodds v. Duncan, 12 Lea, 733; Shannon’s Code, section 6336.

The actual examination, of course, will be had before the clerk of the court on reference made to him by the court.

The motion to strike the answer from the files is denied, but the plaintiffs have leave to summon Chandler before the court for further and fuller examination, if they so desire. In that event the examination will be taken before the clerk of the court in the presence of the counsel of both parties — that is, of the plaintiff and of the garnishee — also of the debtor defendant if he desire to intervene. Smith v. Leonard, 1 Tenn. Cas., 604, 606.