Timmons v. Johnson

15 Iowa 23, 1863 Iowa Sup. LEXIS 80

• Court: Supreme Court of Iowa
• Decided: June 8, 1863
• Status: Published

Opinion

Wright, J.

That the judgment against the garnishee is at least excessive we entertain no doubt. Plaintiff had judgment against the principal, dated November 16th, 1861, for damages and costs, $198.60, and recovered judgment against the garnishee on the 20th of the same month for $318, less costs of the garnishee ‘ proceeding, $6.70. As the indebtedness from Johnson to Craig exceeded that from Craig to plaintiff, the judgment against the garnishee should hare been limited to the amount of the original judgment. If Johnson’s indebtedness had been less, then it would have been proper to have made him liable for the full amount of that indebtedness. But plaintiff had no right to recover against the garnishee a greater amount than was coming to him from his original debtor, and the costs of the first proceeding or judgment. (Revision, § 3209.)

Whether the court below erred in receiving the testimony of Tipton, we need not discuss, as we think that upon another ground the judgment must be reversed. Conceding that there was no note, the mortgage itself, treated by appellee as the sole evidence of the debt, was assignable, and it was erroneous to enter any judgment against the garnishee until such mortgage was delivered; or he was completely exonerated or indemnified from all liability thereon. This is the requirement of the statute (Revision, § 3211), which was intended to guard and protect the rights of garnishees in this class of cases. The mortgage, it is true, was not negotiable, but was assignable, and the statute reaches both classes of paper. (Pope & Slocum v. Jacobus et al., 10 Iowa, 262.)

Reversed.