| N.M. | Jan 23, 1880
This is a case of garnishment, under the territorial statute.
■The material facts are as follows: The plaintiff Zanz recovered judgment in the district court held in Bernalillo county, in October, 1877, against one William E. Talbott.
Execution was issued, which was afterwards returned unsatisfied, and on October 4th, 1877, Elias S. Stover and Almaron M. Coddington were summoned as garnishees. At the May term of 1878, being the return term of the writ, written allegations and interrogatories were exhibited by the plaintiff, in pursuance of the statute, which the garnishees failed to answer, and their default was taken at the next term, October 9th, 1878. This default was subsequently opened, and Stover filed answers to the interrogatories during the same term, on October 14, Coddington not having answered. Judgment by default was taken against him on October 15th, and on the same day the plaintiff filed a denial of portions of the answers of the garnishee Stover, and issue was thereupon joined.
The case came on for trial on the issues so made upon the 19th day of October, whereupon the parties agreed to waive a trial by jury and try the same before the court. The plaintiff introduced the record of judgment in Zanz against Talbott, the execution issued thereon, and the summons to the garnishees, with proof of service. He called one witness, John A. Hill, who testified that he had been a clerk for the garnishees for seven months past in their store at Albuquerque ; that Talbott had been working for them from Oct. 4th, 1877, down to the present time, clerking, and doing other work for them in and about the store and business, and that, to the best of his knowledge and belief, said work was worth $50 per month.
This was all the evidence introduced on said trial, the defendants not introducing any whatever. The court gave judgment for the defendants, to which the plaintiff excepted and appealed to this court.
The court having acted in this case as a jury, so far as its decision on questions of fact was concerned, its verdict should not be set aside, nor the judgment thereon reversed, in a case where there is any evidence whatever, on which it could be based.
In the case before us, no evidence at all was produced on the part of the defendants, and the plaintiff introduced sufficient to make out his case prima facie. To sustain the decision in their favor under these circumstances, counsel for defendants have argued that “ the answer of the garnishee is to be taken as true, and' it was for the plaintiff to disprove the same,” and further say that “ the answer of the garnishee was properly before the court at the trial, and it was for the court (as for a jury, if one had been called), to give it such weight as it deemed it entitled to.”
These arguments are based on the idea that the answers of the garnishee to the allegations and interrogatories of the plaintiffs are evidence in the case. But there is nothing in the law of this territory to sustain such a view.
It is clear from a reading of the statutes.that, however the law may be in other states and territories, here the allegations, answers and denials are to be regarded and treated simply as pleadings. The proceedings are distinctly set forth on page 214 of the Compiled Laws (General Laws, 139).
“The plaintiff may exhibit in the cause written allegations and interrogatories touching the property, effects and credits attached in the hands of any garnishee.
“ The garnishee shall file his answer thereto on oath.
“ The plaintiff may deny the answers of the garnishee in whole or in part, and the issue shall be tried as ordinary issues between plaintiffs and defendants.”
This seems so plain as to require no argument to show that the various papers filed are to be regarded as ordinary pleadings. The allegations stand in place of the ordinary complaint or declaration; the answers in place of the ordinary answer or plea; the denial. in place of the ordinary reply, and the issue thus framed “ shall be tried as ordinary issues between plaintiffs and defendants.”
All the incidental proceedings tend to the same conclusion.
“In default of an answer by the garnishee to the interrogatories propounded, the plaintiff may take judgment by default against him.” (Sec. 17.)
“If the answer of the garnishee be not excepted to or denied, it shall be taken to be true.” (Sec. 19.)
It seems, then, that the allegations, answers and denials are to be considered and treated as pleadings in ordinary actions; and it only remains, therefore, to inquire how the particular case before us is affected by this principle. The allegations state that .the garnishees are indebted to the judgment debtor for work, labor and services in the sum of - $700, or some other sum:
The answers are partially denied and partially not. The part thereof not denied, and therefore standing as confessedly true, is embraced in the answers to the 1st, 3d, 4th and 7th interrogatories, and is to the effect that (1st.) The garnishees compose the firm of Stover & Co. (3d.) Talbott has performed work, labor and services in the garnishees’store.at Albuquerque. (4.) Tie has performed such work continuously since October 4th, 1877, being twelve months. (7.) The garnishees have not paid anything for such work since October 4th, 1877.
The case, therefore, comes up as one in which a plaintiff in his complaint alleges that a defendant owed him a sum of money for services, and the defendant, in his answer, alleges that the plaintiff has worked for him for twelve months, and that he has paid him nothing. Thereupon, the plaintiff introduces evidence of his services and their value, and rests; the defendant introduces no evidence at all.
In such a case there would be no evidence on which a jury could find for the defendant, and, consequently, none on which' a judge sitting in place of a jury could so find.
Under the provision of the statute (Sec. 19), that the answers of the garnishee, if not excepted to or denied, shall be taken to be true, we may consider that any part of such answers not so excepted to or denied, should be considered as true; in other words, such undenied parts of the answers are equivalent to evidence in the case; and if there had been in the undenied portions of the answers in this proceeding any statements which, if they had been regularly in evidence, could have justified a verdict or decision for the defendant, the .decision and judgment herein should be sustained, but as no such statements appear, it is not possible so to sustain them.
The judgment must be reversed, and the ca^e remanded to the district court of the second district for a new trial.