Who may be Garnished and what Property reached - The notice of Garnishment. the purpose of asserting his right as against the plaintiff in the attachment. Easley v. Gibbs et al., 29 Iowa, 129: issue being taken on the answer, did not claim its exemption till after the evidence was in on the trial; held, that the exemption was waived. Ibid. 14. Innkeeper and guest. The guest of an innkeeper may be garnished in an action by a creditor against the innkeeper. It seems that debts due by a municipal or political corporation are the only exceptions to the operation of the statute respecting the garnishment of creditors of a debtor. 8. The assignee of an unnegotiable instrument should give notice of the assignment to the debtor, and if such notice is not given, or if, prior thereto, the judgment of garnishment is rendered against the debtor, as a debtor of the assignor, the creditors, by garnishment, will have a prior claim to the money in the hands | Caldwell v. Stewart, garnishee, 30 Iowa, 379. of the garnishee, and his liability to the assignee is destroyed. Walters v. Washington Ins. Co., 1 Iowa, 404. 9. The rule in relation to one summoned as the debtor of the principal debtor on a nonnegotiable debt is, that the assignee of the debt should give notice of the assignment to the garnishee in time to enable him to show such assignment in his answer, or at least before judgment against him. Having received such notice, if the garnishee neglects to show it in defense, he cannot resist a subsequent claim of the assignee, and, on the other hand, having shown such assignment, he cannot be charged as garnishee. Walters v. The Wash ington Ins. Co., 1 Iowa, 404; McCoid v. Beatty, garnishee, 12 Ibid. 299. 10. Real estate. Garnishment is not the proper method to subject the real estate of a debtor in the hands of a third person to the payment of debts. Seymour et al. v. Kramer et al., 5 Iowa, 285. 11. Garnishment of municipal corporation prior to Revision. Corporations are liable to the process of garnishment. Taylor v. The Burlington and Missouri Railroad Company, 5 Iowa, 114; Wales & Son v. Muscatine, 4 Ibid. 302; Burton & Stapleton v. District Township of Warren, 11 Ibid. 166. 12. Waiver of exemption. A municipal corporation may waive its exemption from garnishment given by section 3196 of the Revision. Clapp v. Walker & Davis, 25 Iowa, 315. 13. What amounts to waiver. Where a school district was garnished, and answered, and *This rule was changed by the following section of the Revision: 15. But if the innkeeper requires the guest to pay, or pledge payment, in advance of his keeping, no indebtedness arises that is the subject of garnishment. Ibid. 16. Garnishment of assignee. When an assignor has made an appropriation of certain property, and this has been accepted by the assignee, the assignment is good, and the holder thereof will not be liable as the garnishee of the assignor. Smith, Twogood & Co. v. Clarke & Henley, garnishees, 9 Iowa, 241. 17. Mortgage of chattels. We can see no reason why the mortgagee [of chattels] may not be garnished and required to answer the amount of his claim yet unpaid, the amount and value of the property he holds as security for the same; and if above the amount of his claim, then that he should be held responsible from the service of the garnishment, for the sale or disposition of any property thus mortgaged, over and above the payment of his own claim. Per LOWE, C. J., in Torbert v. Hayden, 11 Iowa, 435. 18. Garnishment of fraudulent mortgagee. A creditor of a fraudulent mortgagor may, instead of proceeding in equity to set aside the mortgage or levying upon the property and claiming the right to sell it, reach the property included in such mortgage, by garnishing the mortgagee. Brainard v. Van Kuren, 22 Iowa, 261. 19. Property in custodia legis. Under our statute money belonging to a debtor, and in the possession of a court or officer, may be reached by garnishment. Patterson v. Pratt, 19 Iowa, 358. 20. The surplus moneys arising from a sale under deed of trust may be garnished in the hands of the trustee to satisfy the debt of the person entitled to such surplus. Cook & Sargent v. Dillon et al., 9 Iowa, 407. "SEC. 3196. A sheriff or constable may be garnished for money of defendant in his hands. So may a Judgment debtor of the defendant, when the judgment has not been previously assigned on the record or by writing filed in the office of the clerk, and by II. THE NOTICE OF GARNISHMENT. him minuted as an assignment on the margin of the judgment docket, and also an executor for money 21. To municipal corporation. A notice of due from the decedent to the defendant may be garnished, but a municipal or political corporation garnishment was directed to "P. A. Dey, mayor This section is embraced in Code of 1873, section 2976. of Iowa City; S. P. McCaddon, recorder of Iowa shall not be garnished. Answer of Garnishee. City, and Benjamin King, treasurer of Iowa City," and informed them that they and each of them were "attached and held as garnishee, as a debtor and as a person holding property of" the defendant; held, that the service of such notice did not give the court jurisdiction over Iowa City. Claflin, Mellen & Co. v. Iowa City, garnishee, 12 Iowa, 284. 22. Service on partner. A firm is not bound by a notice of garnishment served upon one member thereof, when such service is not made upon him for the purpose of notifying the firm. Bean v. Barney, Scott & Co., 10 Iowa, 498. 23. When notice is necessary. Under section 3270* of the Revision of 1860, if issue is not taken upon the answer of a garnishee at the same term at which it is filed, the garnishee is entitled to notice before further proceedings are had; but such notice is unnecessary where there is a voluntary appearance either in person or by attorney. Kienne v. Anderson, garnishee, 13 Towa, 565. III. ANSWER OF GARNISHEE. 24. The garnishee's answer, when uncontroverted, must be taken as true. Bean v. Barney, Scott & Co., 10 Iowa, 498; Meeker v. Sanders, 5 Ibid. 61. 25. Liability on an answer. In order to charge a garnishee, his liability must be shown by his answer, or by evidence aliunde. If the case rests alone upon the answer, it must show clearly that he is liable. His liability is never presumed. Smith, Twogood & Co. v. Clarke & Henley, garnishees, 9 Iowa, 241. debtedness existed at the time of the service of the notice. Hoops v. Culbertson & Reno, 17 Iowa, 305. 27. Judgment should not be rendered against a garnishee when his answer shows that the goods and credits of the debtor came into his hands in his capacity of clerk or agent for a third party, and that he had delivered them to his employers who were creditors of said debtor. Tevis et al. v. Foster, 3 G. Gr. 71. 28. The liability of a garnishee on his answer discussed. Bean v. Barney, Scott & Co., 10 Iowa, 498. 29. Where the answer of the garnishee claimed to show that he held property under an assignment for the benefit of certain creditors, naming them, and the plaintiff asked the court to instruct the jury" that if the jury believe from the evidence that the property mentioned in the assignment to the garnishee embraced substantially all the property of the principal debtor, not exempt from execution, said assignment is void and of no effect, for the reason that it does not provide for the payment of all the creditors of the party making it in proportion to the amount of their respective claims," which was refused by the court because there was no evidence to which it would apply; the only evidence before the jury being the answer of the garnishee. Held, that the answer of the garnishee being evidence, and the counsel for the plaintiff having the right to address the jury on the question of holding property, and to show from such answer itself that the garnishee did hold property of the principal debtor, the instruction asked by the plaintiff should have been given. Bebb v. Preston, 1 Iowa, 460. 30. When a garnishee answered that the attachment defendant had placed certain notes and bills in his hands as an attorney, that he informed him at the time that they had been 26. Notice of garnishment was served on the 8th, the defendant answered that he was indebted to the judgment defendant on "the evening of the 7th, and about the time of the service of the garnishment," etc. Held, that the answer warranted the presumption that in-hypothecated to a bank named, to which the * Reprinted as section 3051, Code of 1873, and as follows: SEC. 3270. In proceedings by garnishment on execution, the garnishee shall be served as in case of attachment; his answer may be taken by the officer in the same way, and with the same results; he may be notified to appear at the term of court in the same way, and with the same results, and his default shall be attended with the same consequences. The plaintiff may also, if the garnishee is called into court, have a case docketed against him without docket fee, and upon his answer to the officer, issue may be made and notice thereof given him, or issue may be made on his answer in court without any notice thereon, if made at the same term; and in all these and every other particular, the proceedings shall be the same as under garnishment on attachment, as near as the nature of the case will allow. Vol. 2.-69 proceeds should be paid; that after the attachment the bank gave him a similar notice, and that suit had been commenced on a portion of them before the attachment in the name of the bank; held, that the garnishee was not liable on the answer. Smith, Twogood & Co. v. Clark & Henley, garnishees, 9 Iowa, 241. 31. Where a notice of garnishment was served within ninety days, and the answer, filed at the next term of court, having been mislaid and a new answer filed, it was properly held, 1. That Answer of Garnishee. the new answer should be regarded as a con- answer was not denied. The court rendered tinuation of the first; 2. That as the amount judgment against both the garnishees for the due from the garnishee was for personal services rendered within ninety days next preceding the notice, it was exempt from execution and attachment. Stockton v. The City of Burlington, 4 G. Gr. 84. 32. To render a judgment against a garnishee on his answer alone, his indebtedness to the defendant must be clearly admitted, and if there be a reasonable doubt of such indebtedness, judgment should not be rendered against him. Church v. Simpson, 25 Iowa, 408. 33. A judgment against a garnishee is not authorized, unless it is made to appear that he was legally indebted to the defendant. Victor v. The Hartford Fire Insurance Co., 33 Iowa, 210. 34. Application of the rule. By its terms a policy of insurance became forfeited and void by change of occupancy and increase of hazard. Under these circumstances the company was garnished at the suit of a creditor of the assured. Held, the company not being legally indebted to the assured, that a subsequent payment to the assured of the unearned premium, for the purpose of obtaining the policy, did not render the company liable nor authorize a judgment against it. lbid. 35. Promissory note. The answer of a garnishee that he holds a note executed by a third party to the debtor, which he received from the latter for the purpose of paying a certain judgment on which he was surety for the stay of execution, will not justify a judgment against the garnishee. Dryden v. Adams, garnishee, 29 Iowa, 195. 36. Mortgage of personal property. Where the answer of a garnishee merely shows that he holds a mortgage on personal property of the debtor, which is in the possession of the latter, and the value of which is not shown, the garnishee should be discharged. First National Bank of Newton v. Perry, 29 Iowa, 266. 37. General assignment. Two persons were garnished, and in their answer, one of them professed to hold the property in his hands under an assignment of a judgment debtor, for the benefit of the creditors; the answer of the other garnishee alleged that his name as assignee was left out of the assignment by mistake, and that he had been acting under the orders and control of the assignee whose name was inserted in the deed, which amount of judgment against the principal debtor, with costs. Held, 1. The proceedings against the garnishee whose name was omitted from the assignment and who was acting under the assignee, should have been dismissed; 2. The judgment against the garnishees was erroneous. Meeker v. Sanders, 6 Iowa, 61. 38. Liability shown notwithstanding denial. Where, notwithstanding the general denial of the garnishee of having property of, or being indebted to, the attachment defendant, the garnishee proceeds to show the circumstances under which he does, in fact, hold property of such defendant, the legal question is, whether he so holds it as to be liable to the process; and in his statement of the whole facts he may show that he is liable, notwithstanding the general denial. Bebb v. Preston, 1 Iowa, 460. 39. Where liability of garnishee is contingent. When it appears from the answer that it is uncertain whether or not the garnishee is indebted to or holds property of the defendant, and that said question can only be determined upon the happening of a contingency in the future, the court may, upon application of either party, continue the proceedings against the garnishee and permit and require him to make further answer, showing the result upon occurrence of the contingency. Williams & Cunningham v. Housel, garnishee, 2 Iowa, 154. 40. Practice. When a garnishee answers, (1) denying that he owes the defendant, or that he has any of his property, rights or credits in his possession; and (2) showing specially that he does, in fact, hold property of such person in his possession, the plaintiff may take issue on the general answer, and is not required to propound specific questions to explain the matters stated in such special answer. Bebb v. Preston, garnishee, 3 Iowa, 325. 41. A garnishee, upon making his answer, may move to be discharged. Chase v. Foster, garnishee, 9 Iowa, 429. 42. Refusal of garnishee to answer. A gar nishee is not liable for the payment of the entire debt by a refusal to answer a question propounded to him by a commissioner, the correctness of which has not been adjudicated by a court. Sawyer & Co. v. Webb, 5 Iowa, 315. 43. Form of answers. The garnishee is not compelled to answer the general questions laid The Garnishee, his Rights and Liabilities. down in the statute categorically, but may go on 45. Notice. The garnishee's answer brings him into court, and after it is made and before it is disposed of, he must take notice, as a party to an action, of every thing that is done, and follow it on change of venue. Chase v. Foster, garnishee, 9 Iowa, 429. owing money to another, or as having property of another in his hands, and in either case without fault or blame; and he is supposed to stand indifferent as to who shall have the money or property. Walters v. Washington Ins. Co., 1 Iowa, 404; Williams & Cunningham v. Housel, supra. 54. A garnishee is never, except by his own carelessness or negligence, to be placed in a worse situation than he would occupy if the attachment or execution defendant were himself prosecuting his claim against him. Burton & Stapleton v. District Township of Warren, 11 Iowa, 166; Smith, Twogood & Co. v. Clarke & Henley, 9 Ibid. 241; McCord v. Beatley, 12 Ibid. 299. 55. A garnishee is not required, upon service of notice, to tender or bring into court the money or property in his hands liable to the garnishment; and does not by retaining the same render himself liable for costs. He is rendered IV. THE GARNISHEE, HIS RIGHTS AND LIABIL- liable only by a refusal to answer, or by con ITIES. 46. Liability of garnishee. To charge a garnishee, his liability must be affirmatively shown. Morse v. Marshall, garnishee, 22 Iowa, 290. 47. Answer. A garnishee will not be charged on his answer alone, unless it contains a clear admission of a debt due to, or the possession of money or attachable property of, the defendant. Ibid. duct seeking to avoid a fair investigation of his liability to the defendant. Randolph & Leslie v. Heaslip, 11 Iowa, 37. 56. In the process of garnishment the gar nishee is not presumed to be indebted to the defendant. The burden of showing his liability is upon the plaintiff; and this is done either upon his answer or by joining issues on the answer and by showing it by other proof. The presumption is against the garnishee only as to matters which he is bound to know, to ascertain and to state, and which he leaves doubtful 49. The liability of the garnishee must be af- or unexplained. Williams & Cunningham v. firmatively shown by the evidence, or clearly | Housel, garnishee, 2 Iowa, 154; Wilson v. Albright, 48. Doubt. And if it be left in reasonable doubt whether he is chargeable or not, he is entitled to a judgment in his favor. Ibid. appear from his answer, or he will not be held. Farwell & Co. v. Howell & Co., 26 Iowa, 381. 50. To render the garnishee liable to the creditor, it must be made to appear that he was indebted to the defendant, or had property, etc., at the time or subsequent to the service of the garnishee notice. Weire v. The City of Davenport et al., 11 Iowa, 49. 2 G. Gr. 125. 57. Where a garnishee answered "At the time of the service of the garnishee notice in this action, I had under my control property of the defendant to the amount of probably $2,000, it may have been more or less. This property had been previously attached at the suit of A v. B, and released by a bond on 51. The garnishee is under no greater lia. which I was surety. To secure me against liability to his garnishor than to his creditor. son v. Albright, 2 G. Gr. 125. Wilbility on such bond, B executed to me a chattel mortgage on said property, with power at any 52. The garnishee can be charged only to the time to take the same into my possession. Preextent of his liability to the defendant. Wil-vious to my being garnisheed in this suit I had liams & Cunningham v. Housel, garnishee, 2 Iowa, 154; Bebb v. Preston, 1 Ibid. 460; Fifield v. Wood, garnishee, 9 Ibid. 249. 53. Primarily a garnishee is taken to be an innocent person who is called into court as taken possession of said property and was selling the same under a subsequent agreement between said B and myself. Since the time of my garnishment in this action the said property was attached by C, sheriff, and taken from my The Garnishee, his Rights and Liabilities. possession. The above-mentioned suit of A v. B, in which the said property was attached, was brought for about $1,000 and costs," it was held, that the garnishee was not bound by the statement of the costs or by his estimate of the property. Williams & Cunningham v. Housel, garnishee, 2 Iowa, 154. Held, that the court was justified in rendering judgment against the garnishee, to be paid by the estate. Morgan v. McLaren, 4 G. Gr. 536. 63. Effect of default. When a garnishee is called and fails to appear, a default may be entered against him, though no interrogatories, as contemplated by the statute, have been pre58. Agency presumed. Where garnishees pared and propounded by the plaintiff. It is were in possession of goods under a chattel not necessary to submit such interrogatories bemortgage executed before the garnishment by fore the appearance of the garnishee. Parmenone claiming to be their debtor's agent, held, ter v. Childs; Noble v. The same; Eberman v. that the authority of the agent will be presumed The same, 12 Iowa, 22. in the absence of its disaffirmance by his princi64. Change of venue. Where the garnishee pal. Farwell v. Howard, 26 Iowa, 381. appeared and answered the general interrogato59. When chargeable with interest. A gar-ries, and at the next term the venue was changed ǹishee is not chargeable with interest upon funds in his hands from the time of garnishment, unless he appears as a litigant, or it is made to appear that he has used said funds. Moore v. Lowrey, 25 Iowa, 336. on plaintiff's motion, to another county, where a replication, setting up new matter, was filed, to which there was no rejoinder (no further notice having been given to the garnishee); Held, that the garnishee was in default, and that as he did not object in the court below, he cannot in this court. Chase v. Foster, garnishee, 9 Iowa, 429. 65. Garnishee's lien. A garnishee holding property of the attachment defendant, upon which he has a lien, has a right to hold the same until his lien is discharged. It is error to render an absolute judgment against such a garnishee upon his failure to deliver the prop 60. Assignable mortgage. A garnishee cannot be made liable on a mortgage which is not negotiable but is assignable, unless the mortgage is produced, or the garnishee is completely exonerated or indemnified from liability thereon after he may have satisfied the judgment. (Rev. 1860, § 3211.*) Timmons v. Johnson, 15 Iowa, 23. 61. Mortgagee of personal property. A mortgagee of personal property which has never come into his possession is not bound, after gar-erty to the sheriff as provided by sections 1891 nishment by an attaching creditor of the mortgagor, to take possession of the property for the benefit of such creditor, and cannot, in the absence of fraud or collusion, be held liable for the same, though it exceeded in value the amount of his mortgage. Curtis v. Raymond Bros. & Co., 29 Iowa, 52. 62. Executor. Where C., as executor of the estate of P., was garnished, and answered that P. was indebted to M. K. & Co. in the sum of $140; that M. had verbally contracted to buy two lots of P., and to pay $300 for them, half in printing and half in cash; that the bill of M. K. & Co. was to go in part payment; that "in case the balance of said purchase-money is not paid, and I should conclude to rescind the contract and receive back the two lots, then the estate will be owing about the amount of $140. * Reprinted as section 2990, Code of 1873, and as follows: SEC. 3211. The garnishee shall not be made liable on a debt due by negotiable or assignable paper, unless such paper is delivered, or the garnishee completely exonerated or indemnifled from all liability thereon, after he may have satisfied the judgment. and 1893 of the Code of 1851. Smith, Trogood & Co. v. Clarke & Henley, garnishees, 9 Iowa, 241. 56. What garnishee may be required to disclose. A garnishee may be required to disclose what he knows, both in regard to his own indebtedness and the indebtedness of other persons to the attachment defendant; but the answer binds no one but the party making it. Bean v. Barney, Scott & Co., 10 Iowa, 498; Bebb v. Preston, 1 Ibid. 460. 67. Negligent garnishee. The law will not protect a negligent garnishee, especially when such negligence may result in injury to a bona fide creditor. Houston v. Wolcott & Co., 7 Iowa, 173, and see Large v. Moore, 17 Ibid. 258; Fogg v. Parker, 11 Ibid. 18. 68. Where a garnishee by his negligence suffers to judgments to be rendered against him for the same indebtedness, and he voluntarily pays the last one, the law will not protect him nor will equity relieve him from the conse- . quences of his neglect, unless there is fraud, accident, or mistake. Ibid. |