Woodward, J.(1)
The first matter presented, is a motion to dismiss tbe appeal, for tbe alleged reason tbat tbe judgment of tbe court below, is not such a judgment as warrants an appeal therefrom. Tbe statute gives an appeal from final judgments and decisions of tbe District Court, “as well in case of civil actions, properly so called, as in proceedings of a special or independent character.” If an appeal does not lie from a judgment discharging a garnishee, neither does it lie from one charging him. Tbe court would be very reluctant to hold, tbat there was no appeal for a-garnishee, from whatever judgment of the District Court j and it is at least doubtful, whether the party would, in a reverse case, take tbe ground implied in this motion. Under tbe provisions of tbe statute, there has arisen a case between this plaintiff and tbe garnishee, as important as that between tbe plaintiff and defendant. Tbe amount involved is no less than twenty-five hundred dollars, and there is no [467] limit to the amount which may be involved in a like proceeding, and the garnishee’s own interest may be at stake, as well as that of others. This proceeding is well adapted, not only to inquire into indebtedness, but to investigate fraud or concealment in the transfer of personal property, and' in assignments for the benefit of creditors. It is a sort of bill -in equity, but still more penetrating. The garnishee may not only be asked the general questions suggested by the statute, but any others, tending to reveal the true character -and consideration of the transaction. , Of course, it is not intended to say that no question or inquiry will be -improper, but the above remark is made as true in general. It is said •this is only a part of -the process of attachment. That is -true in this case. But it may arise under an execution also, •and then it becomes more independent of the mere proceedings in the particular action. It is true, it must have connection with an action commenced, or judgment recovered, and then it becomes almost an action-of itself. It is such in -substance, though not in form. If it must have a name, we will call it a special proceeding. But, whatever we call it, -it cannot be admitted that the law does not intend to give •an appeal to the garnishee. And, if he has-one, the plaintiff -has. Johnson & Stevens v. Butler, ante, 459.
We pass to the principal part of the case. The answer of •Preston, the garnishee, does not set out the bills of sale (as ■they are called) made to Adams, Crane, and Baggett; and, in this state of the answer, it cannot be seen whether they were absolute bills of sale, in payment of their debts, or -assignments to raise the me’ans to pay them. Therefore, the ■question is in relation to the balance of the property or fund, •after their payment. It is manifest that the instrument made to Preston, was an assignment only. .It recites the indebtedness to various persons, and that for the purpose of •paying -them, Hathaway delivers the stock of goods in the •store occupied by him, and authorizes Preston to sell them at public auction, allowing him to give credit on all sums over twenty-five dollars, and requiring him to account to Hathaway, for the remainder of the proceeds- of the sale, after [468] paying tbe debts and expenses. Tbis stock of goods is placed in tbe garnisbee’s bands, in gross. Portions are not set apart for tbe several creditors. And it is apparent tbat they were not taken in payment. In tbis state of things, tbe garnisbee answers, tbat be bas no property, rights, or credits of tbe defendants in bis bands, but proceeds to make a statement, and to answer interrogatories, in relation to tbis transaction, and shows tbe above assignment to himself, for tbe payment of tbe debts.
Tbe Code, section 1872, authorizes tbe plaintiff to controvert any facts contained in tbe answer and specified by him, and issue being thereupon joined, may be tried in tbe usual manner. And by section 977, it is enacted, tbat no general assignment of property by an insolvent, or in contemplation of insolvency, for tbe benefit of creditors of tbe assignor, shall be valid, unless it be made for tbe benefit of all bis creditors, in proportion to tbe amount of their respective claims. Tbe plaintiff (intending it under tbe above sections) alleged tbat tbe assignment to Preston embraced all tbe property of tbe defendant no.t exempt from execution, and was made with intent to binder and delay creditors, and was fraudulent in law and in fact as against said creditors. After demurrer, and motion for more specific statement, tbe plaintiff avers, tbat tbe garnishee bas in bis possession, or under bis control, property, rights, or credits of tbe defendants, and denies tbe answer, and each allegation thereof, to tbe first interrogatory, under which tbe present questions arise. Tbe plaintiff then offered evidence to show, tbat tbe assignment contained substantially all of tbe property of tbe defendants, and tbat they were indebted to other persons than those named in tbe assignment to Preston; which evidence was rejected by tbe court, and no other evidence was introduced. His counsel then sought to address tbe jury, but. tbe court, bolding tbe only issue to be on tbe truth or falsity of tbe garnisbee’s answer, and tbat there was no evidence against it before tbe jury, refused to permit them; whereupon tbe jury found a verdict for tbe garnisbee. In tbis, we think, tbe court erred. Tbe garnisbee is not com-[469] pelledto answer tbe general questions categorically, but may go on and state tbe facts and circumstances, and leave tbe decision of tbe question to tbe court. This is for bis safety. It is sometimes a difficult and a complicated question, and be bas a right to throw tbe decision of it upon the tribunal. Thus, in this case, be first denies generally having property in bis bands belonging to tbe defendants, and then proceeds to state tbe circumstances under which be does, in fact, bold property of theirs; and tbe legal question is, whether be so bolds it, as to be liable to tbe plaintiff’s call. Now, in bis statement of tbe whole facts, we may show that be is liable, notwithstanding tbe general denial. Thus, suppose be states that be bolds certain property by an assignment, in relation to which be discloses such matter, as shows that it is fraudulent against creditors, or void for any cause. These statements would override bis denial of bolding property; and •other cases might be put, leading to tbe same conclusion. It is probably true, that tbe truth or falsity of tbe answer, was'the only question for tbe jury. But it was not tbe truth or falsity of any one proposition, necessarily, nor of any part of tbe answer in particular; but it was in relation to tbe leading ultimate denial, of having no goods of defendants in bis bands. It is difficult to put tbe position here intended to be taken, into a general proposition. In some oases, a single fact or statement may be tbe point in issue, but then it would be one conducing to show tbe falsity of tbe general averment, that be bad no property. Here, defendant says be bas no property, &c., but chooses to go on and state that be does in fact bold property, &e., but not so as to be liable. Now, in bis statement of tbe facts, we can well see, there is ground on which to base a fair argument, that be did so bold it, so as to be liable. And this would be pertinent to tbe main denial.
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Woodward, J.(1)
The first matter presented, is a motion to dismiss tbe appeal, for tbe alleged reason tbat tbe judgment of tbe court below, is not such a judgment as warrants an appeal therefrom. Tbe statute gives an appeal from final judgments and decisions of tbe District Court, “as well in case of civil actions, properly so called, as in proceedings of a special or independent character.” If an appeal does not lie from a judgment discharging a garnishee, neither does it lie from one charging him. Tbe court would be very reluctant to hold, tbat there was no appeal for a-garnishee, from whatever judgment of the District Court j and it is at least doubtful, whether the party would, in a reverse case, take tbe ground implied in this motion. Under tbe provisions of tbe statute, there has arisen a case between this plaintiff and tbe garnishee, as important as that between tbe plaintiff and defendant. Tbe amount involved is no less than twenty-five hundred dollars, and there is no [467] limit to the amount which may be involved in a like proceeding, and the garnishee’s own interest may be at stake, as well as that of others. This proceeding is well adapted, not only to inquire into indebtedness, but to investigate fraud or concealment in the transfer of personal property, and' in assignments for the benefit of creditors. It is a sort of bill -in equity, but still more penetrating. The garnishee may not only be asked the general questions suggested by the statute, but any others, tending to reveal the true character -and consideration of the transaction. , Of course, it is not intended to say that no question or inquiry will be -improper, but the above remark is made as true in general. It is said •this is only a part of -the process of attachment. That is -true in this case. But it may arise under an execution also, •and then it becomes more independent of the mere proceedings in the particular action. It is true, it must have connection with an action commenced, or judgment recovered, and then it becomes almost an action-of itself. It is such in -substance, though not in form. If it must have a name, we will call it a special proceeding. But, whatever we call it, -it cannot be admitted that the law does not intend to give •an appeal to the garnishee. And, if he has-one, the plaintiff -has. Johnson & Stevens v. Butler, ante, 459.
We pass to the principal part of the case. The answer of •Preston, the garnishee, does not set out the bills of sale (as ■they are called) made to Adams, Crane, and Baggett; and, in this state of the answer, it cannot be seen whether they were absolute bills of sale, in payment of their debts, or -assignments to raise the me’ans to pay them. Therefore, the ■question is in relation to the balance of the property or fund, •after their payment. It is manifest that the instrument made to Preston, was an assignment only. .It recites the indebtedness to various persons, and that for the purpose of •paying -them, Hathaway delivers the stock of goods in the •store occupied by him, and authorizes Preston to sell them at public auction, allowing him to give credit on all sums over twenty-five dollars, and requiring him to account to Hathaway, for the remainder of the proceeds- of the sale, after [468] paying tbe debts and expenses. Tbis stock of goods is placed in tbe garnisbee’s bands, in gross. Portions are not set apart for tbe several creditors. And it is apparent tbat they were not taken in payment. In tbis state of things, tbe garnisbee answers, tbat be bas no property, rights, or credits of tbe defendants in bis bands, but proceeds to make a statement, and to answer interrogatories, in relation to tbis transaction, and shows tbe above assignment to himself, for tbe payment of tbe debts.
Tbe Code, section 1872, authorizes tbe plaintiff to controvert any facts contained in tbe answer and specified by him, and issue being thereupon joined, may be tried in tbe usual manner. And by section 977, it is enacted, tbat no general assignment of property by an insolvent, or in contemplation of insolvency, for tbe benefit of creditors of tbe assignor, shall be valid, unless it be made for tbe benefit of all bis creditors, in proportion to tbe amount of their respective claims. Tbe plaintiff (intending it under tbe above sections) alleged tbat tbe assignment to Preston embraced all tbe property of tbe defendant no.t exempt from execution, and was made with intent to binder and delay creditors, and was fraudulent in law and in fact as against said creditors. After demurrer, and motion for more specific statement, tbe plaintiff avers, tbat tbe garnishee bas in bis possession, or under bis control, property, rights, or credits of tbe defendants, and denies tbe answer, and each allegation thereof, to tbe first interrogatory, under which tbe present questions arise. Tbe plaintiff then offered evidence to show, tbat tbe assignment contained substantially all of tbe property of tbe defendants, and tbat they were indebted to other persons than those named in tbe assignment to Preston; which evidence was rejected by tbe court, and no other evidence was introduced. His counsel then sought to address tbe jury, but. tbe court, bolding tbe only issue to be on tbe truth or falsity of tbe garnisbee’s answer, and tbat there was no evidence against it before tbe jury, refused to permit them; whereupon tbe jury found a verdict for tbe garnisbee. In tbis, we think, tbe court erred. Tbe garnisbee is not com-[469] pelledto answer tbe general questions categorically, but may go on and state tbe facts and circumstances, and leave tbe decision of tbe question to tbe court. This is for bis safety. It is sometimes a difficult and a complicated question, and be bas a right to throw tbe decision of it upon the tribunal. Thus, in this case, be first denies generally having property in bis bands belonging to tbe defendants, and then proceeds to state tbe circumstances under which be does, in fact, bold property of theirs; and tbe legal question is, whether be so bolds it, as to be liable to tbe plaintiff’s call. Now, in bis statement of tbe whole facts, we may show that be is liable, notwithstanding tbe general denial. Thus, suppose be states that be bolds certain property by an assignment, in relation to which be discloses such matter, as shows that it is fraudulent against creditors, or void for any cause. These statements would override bis denial of bolding property; and •other cases might be put, leading to tbe same conclusion. It is probably true, that tbe truth or falsity of tbe answer, was'the only question for tbe jury. But it was not tbe truth or falsity of any one proposition, necessarily, nor of any part of tbe answer in particular; but it was in relation to tbe leading ultimate denial, of having no goods of defendants in bis bands. It is difficult to put tbe position here intended to be taken, into a general proposition. In some oases, a single fact or statement may be tbe point in issue, but then it would be one conducing to show tbe falsity of tbe general averment, that be bad no property. Here, defendant says be bas no property, &c., but chooses to go on and state that be does in fact bold property, &e., but not so as to be liable. Now, in bis statement of tbe facts, we can well see, there is ground on which to base a fair argument, that be did so bold it, so as to be liable. And this would be pertinent to tbe main denial.
W,e will try to explain a little farther. Let us look at tbe position of tbe parties. Tbe garnishee says be bas no property of defendants in bis bands. Tbe plaintiff controverts this, and sajs be bas such property. Tbe answer does,not mean legally, that be literally bas none; but that be bas [470] none liable to tbe plaintiff in tbis proceeding. That this is the true meaning, is manifest, both from the legal nature of the case, and from the fact that the answer proceeds to state how he does,, in fact, hold certain property of theirs; impliedly arguing that he does n<?t hold it,, in such manner, and under such circumstances, as to be chargeable on account of it. He has a right to set forth all the facts, as is here done,, and leave the legal question to the tribunal-, for it may often involve difficult legal inquiries. And we observe from this,, that the detail of circumstances may be all true, and yet the defendant be liable; or in other words, his general denial be legally untrue; for notwithstanding the truth of those facts, he may have in his hands property which is liable;; and farther, the opposite party may rely upon those very facts and statements (as in this case he does), to show the liability. Therefore, it is the truth of the general denial which, in this case, is ultimately in issue; and the counsel should have been permitted to show the error of the general denial, by the matter contained in the answer.
It follows, therefore, that the court should have given the instruction asked by the plaintiff. This was- not refused upon the ground that it was not law, but because, as the court held, there was no evidence to which it would apply. The answer being evidence, and it being now held that the counsel have a right to address- the jury on the question of holding property, as before explained, they have the consequent right to make out from the answer, if they can, the point of fact suggested in the- instruction asked by them.. This, however, we limit at present to the first ground assigned by the counsel. We do not pass upon the second, third, and fourth grounds taken in the instructions.
Other errors arc assigned on the refusal of the testimony of McIntosh, the refusal of evidence, showing that the assignment contained all the property of Hathaway & P,ark-hurst, and that there were other creditors not named therein,, and not provided for. This cause having to be decided by two, only of the members of the court,, and the court being-. [471] divided upon tbe questions last named, in tbe present state of tbe pleadings, tbej are not decided.
It is considered, therefore, that tbe judgment of the District Court be reversed, and that tbe cause be remanded, with directions to proceed in accordance with this opinion.