Netter v. Stoeckle

56 A. 604, 20 Del. 345, 4 Penne. 345, 1903 Del. LEXIS 31

• Court: Superior Court of Delaware
• Decided: May 29, 1903
• Docket: No. 51
• Status: Published

Opinion

Pennewill, J.,

charging the jury:

Gentlemen of the jury:—Originally Seligman Netter, trading as Netter Brothers, obtained a judgment against Sarah Nest'pr, upon which judgment an attachment was issued, and Harry J. Stoeckle, manager, was summoned as a garnishee to answer what money, goods, chattels, rights, credits or effects of Sarah Nestor he had in hand. That attachment was served on March 21,1901,and the answer was continued from time to time until November 19, 1901, when a plea of nulla bona was entered!

The question you are to determine is whether the garnishee, Harry J. Stoeckle, manager, was legally indebted to Sarah Nestor in the manner above indicated, at the time the attachment was served or any time between that and November 19, 1901.

In order that the plaintiff may recover, he must satisfy you, by a preponderance of the testimony, that Harry J. Stoeckle> manager, on March 21,1901, or some time between that and November 19, 1901, was legally liable to Sarah Nestor for money, goods, chattels, rights, credits or effects of Sarah Nestor.

It has been laid down by this Court that the attaching creditor stands in no better position than the defendant as to the collection of a debt due to the latter from the garnishee.

It is the general rule that the right of the attaching creditor to recover against the garnishee depends upon the subsisting rights between the garnishee and the debtor in the attachment; and the test of the garnishee’s liability is that he has funds, property or credits in his hands belonging to the debtor, for which the latter would have a right to sue.

Odenhal et al. vs. Devlin, 48 Md., 444.

The garnishee stands in the same position that he would have been in had the suit been brought by his own creditor. The fact that a garnishment process has been served upon him places him in no worse position and under no greater liability than he would have been had an action at law been brought against him by the principal defendant to whom he was indebted, or whose property he had in his possession.

Under the law, as the Court have declared it to you, and the evidence you have heard from the stand, you are to find your verdict.

Verdict for defendant.