Kerr v. Edgington

Supreme Court of Iowa

Kerr v. Edgington

75 N.W. 669, 106 Iowa 68

DecidedMay 27, 1898

StatusPublished

This text of 75 N.W. 669 (Kerr v. Edgington) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kerr v. Edgington, 75 N.W. 669, 106 Iowa 68 (iowa 1898).

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Opinion

Granger, J.

The judgment in this case should not have been entered. The proceeding was themere taking of the answers of the garnishee. That he intended to deny that he had any money belonging to Kennedy or was indebted to him is clear.' Nothing more can be said of the facts than that they leave the conclusion doubtful. There is no way to account for the conclusion of the court below, except to disregard the intention of the garnishee to deny a liability, as it appears from his answers, and, by construing his statements, reach a different conclusion. Such a course is not authorized in such a proceeding. No issue is formed, and, in a sufficient sense, no trial is had. The object of such a proceeding is to see if the garnishee acknowledges a liability in •some form, or states facts to clearly authorize such a finding. It is said in Hibbard v. Everett, 65 Iowa, 372, in such a proceeding, speaking of a garnishee, that, “to hold him liable, [70]*70his answer must contain a clear admission to that effect.” In Morse v. Marshall, 22 Iowa, 290, where an issue was taken on the answer filed, and the issue was tried upon the answer,, the other evidence not conflicting with it, it is said: “In-order to charge the garnishee on his answer alone, there must be in it a clear admission of a debt due to, or the possession of money or attachable property of, the defendant.” It is also said in that case: “If it be left in reasonable doubt whether he is chargeable or not, he is entitled to judgment in his-favor.” There are several quite similar holdings in this state, and the rule has general support on authority. In such a proceeding, if the answer does not authorize a judgment, under such a rule, the plaintiff in execution, if .not content with a judgment discharging the garnishee, should take-issue on his answer, so that a trial can be had, and the rights of parties determined thereunder. The judgment is REVERSED.

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Granger, J.

The judgment in this case should not have been entered. The proceeding was themere taking of the answers of the garnishee. That he intended to deny that he had any money belonging to Kennedy or was indebted to him is clear.' Nothing more can be said of the facts than that they leave the conclusion doubtful. There is no way to account for the conclusion of the court below, except to disregard the intention of the garnishee to deny a liability, as it appears from his answers, and, by construing his statements, reach a different conclusion. Such a course is not authorized in such a proceeding. No issue is formed, and, in a sufficient sense, no trial is had. The object of such a proceeding is to see if the garnishee acknowledges a liability in •some form, or states facts to clearly authorize such a finding. It is said in Hibbard v. Everett, 65 Iowa, 372, in such a proceeding, speaking of a garnishee, that, “to hold him liable, [70]*70his answer must contain a clear admission to that effect.” In Morse v. Marshall, 22 Iowa, 290, where an issue was taken on the answer filed, and the issue was tried upon the answer,, the other evidence not conflicting with it, it is said: “In-order to charge the garnishee on his answer alone, there must be in it a clear admission of a debt due to, or the possession of money or attachable property of, the defendant.” It is also said in that case: “If it be left in reasonable doubt whether he is chargeable or not, he is entitled to judgment in his-favor.” There are several quite similar holdings in this state, and the rule has general support on authority. In such a proceeding, if the answer does not authorize a judgment, under such a rule, the plaintiff in execution, if .not content with a judgment discharging the garnishee, should take-issue on his answer, so that a trial can be had, and the rights of parties determined thereunder. The judgment is REVERSED.

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75 N.W. 669, 106 Iowa 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerr-v-edgington-iowa-1898.

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