
    Coffman v. Ford.
    1. Practice: pleading: garnishment. Where a single.pleading was tiled controverting the answers of' two garnishees, and on motion one of the garnishees was dismissed therefrom as improperly joined therein with his co-garnishee, it was held that the plaintiff was entitled to file a further pleading taking issue upon the answer of such garnishee.
    
      Appeal from Hcvrrisori Circuit Court.
    
    Thursday, June 9.
    On the second day of January, 1880, the plaintiff commenced an action against Jacob Minton, and attached A. W. Ford and George L. Eacon as garnishees. At the March term, 1880, the garnishees'failed to appear, and the cause was continued to the October term. On the 26th day of October -the cause came on for hearing, and judgment was rendered against Minton for $393.13. The garnishees came into court on tbe 26th day of October, and each answered orally, denying any indebtedness to the defendant Minton, and denying that he had any property in his hands belonging to Min-ton. The plaintiff thereupon- asked and obtained permission, to file a pleading on the 29th day of October, taking issue upon the answers of the garnishees. On the 29th day of October the plaintiff filed a reply taking issue in .the same paper upon' the answers of both Ford and'Bacon, and asking judgment against them for the amount of the judgment against Minton. On the 30th day of October A. W. Ford filed a motion that lie be dismissed as a party defendant from the pleadings of plaintiff controverting the answer of his co-garnishee, defendant George S. Bacon, upon the ground that the defendant Ford was improperly joined as a party with the defendant George S. Bacon. On the 4th day of November the court sustained the motion, and the plaintiff excepted. The plaintiff immediately fil ed an amended and substituted pleading controverting the answer of garnishee A. W. Ford, entitling the case John Coffman, plaintiff, against A. W. Ford as garnishee, in case of Coffman v. Minton. Thereupon the garnishee Ford filed a motion to ' strike this pleading from the files, as follows:
    “ 1. The said pleading is improperly on file in this case against George S. Bacon, as the said defendant Ford has been dismissed.
    “2. The pleading controverting the answer of 'A. W. Ford was noto filed within the time allowed by the court to jilnintiff, to take issue with answer of said garnishee.”
    The court sustained this motion. The plaintiff appeals.
    
      JO. JR. Bolter, for the appellant.
    
      W. JS. /Shoemaker, for the appellee.'
   Day, J.

Without inquiry as to the correctness of the ruling sustaining the first motion, wé are of opinion that the court erred in sustaining the motion to strike from the files the substituted pleading. It is urged that this pleading was filed in the case of Coffman v. Bacon, from which Ford had already been dismissed. This is but a technical and narrow view of the question. The main', action was Coffman v. Minton, and the substituted pleading by its caption shows clearly that that is the case in which it was filed. The pleading was filed in the only manner that it could be done under section 2992 of the Code. The first motion of the defendant Ford was not that he be dismissed as a garnishee, but simply that he be dismissed as a party from the pleading of plaintiff controverting the answer of Bacon. The effect of sustaining the motion was simply to leave the answer of Ford without any pleading controverting it. The plaintiff took issue upon the answer of Ford, within the time allowed by order of the court, but took issue.in a manner which the court held to be improper. In fixing the time within which the plaintiff should take issue upon the answer of the garnishees the court did not require the plaintiff at his peril to file a pleading unassailable by demurrer or motion. The plaintiff, upon the sustaining of the first motion, had a right to amend. He availed himself of this right at once, and, in .striking his amended pleading from the files the court erred.

Beversed.  