Penyan v. Berry

52 Ark. 130

• Court: Supreme Court of Arkansas
• Decided: May 15, 1889
• Status: Published

Opinion

Per Curiam.

Garnishment: Effect of order to pay, etc. An order to pay money made by the court upon a garnishee after his failure to appear in the attachment proceedings wherein he was garnished, is not a judgment against the garnishee, and does not determine his liability to pay. Giles v. Hicks, 45 Ark., 271; Ry. v. Richter, 48 ib., 349. The garnishment proceeding is not instituted to settle the question of indebtedness between the attached debtor and third persons (Moore v. Kelly, 47 Ark., 219), and the only effect of the court’s order upon the garnishee is .to confer upon the attaching creditor of his creditor, the same right to collect whatever he may owe his attached creditor, that the latter had against him, i. e., the garnishee. Giles v. Hicks, sup. When suit is instituted by the attaching creditor to recover the garnished debt, the order made in the attachment proceedings does not preclude the garnishee from setting up any defense he might have made before the garnishment.

The chancellor heard the witness orally, and had opportunities of judging of their credibility that we have not; and,his finding of fact, if opposed to the preponderance of evidence at all, is not so grossly opposed to it, as to warrant our interference.

Affirmed.