
    Bebb v. Preston, Garnishee.
    An. order discharging a garnishee, is such a judgment as may be appealed from.
    Where an agreement recited that H. was indebted to certain persons, naming them, and specifying the amount of indebtedness to each, and that P. was about to commence legal proceedings against H. to collect said claims; and then went on to deliver to said P., attorney for claimants, for the consider- , ation and purposes aforesaid, a certain stock of goods nowin the store of H., and to authorize said P. to sell the same at public outcry, or vendue, for the highest price the same will bring,.on the following terms: for all sums.over $25.00, .six months credit, with security, at ten per cent, interest; for a less sum than $25.00, money down; and where B. agreed on his part, after paying all costs and charges attending the sale, together with the .payment of the claims mentioned in the agreement, to account to said H. for the residue of the purchase money received for said goods upon the sale, which agreement was signed by H. and -P.; 'Held, (Chat the agreement was an assignment only.
    And where P. was garnished by a creditor of H.’s, not provided for in the agreement, and in his answer, after denying that he had any property, money 'or credits of said H. in his possession, or under his control, or that he was ¡indebted to said H., -went on :to show that what -property he had -received, was received under the said agreement, and what disposition had been made of the property, from which it appeared that a portion of the proceeds of the property was still in the hands of the garnishee, which answer was denied by the plaintiff; and where, there being no evidence before the jury other than the answer of the garnishee,, the attorney for the plaintiff in the garnishee process, claimed the right to address the jury, whioli was refused by the court, the court holding the only issue to be, the truth or falsity of the answer, and that there was no evidence to contradict it before the jury; Held, That the ruling of the court was erroneous.
    The-garnishee is-no't compelled to answer the general questions laid down in the statute, categorically, but -may go on and state facts and.circumstances, ■'and leavo the question, of his liability to the court.
    ‘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 faot, hold property of esuoh defendant, the legal question is, whether he so holds it as to he liable to .the process.? And in. his statement of the whole facts, he may show that.he is liable, notwithstanding the general denial.
    While it is probably true, that the truth or falsity of the answer, is the only question for the jury, yet it is not the truth or falsity of any one proposition, nor of any part of the .answer, in particular, but the question is as to the truth or falsity of the leading ultimate denial, of being indebted to, or having no property of, defendant in his hands.
    
      íhe. detail of circumstances set forth in the answer, may all be true, and yet the general denial he legally untrue; for notwithstanding the truth of those facts, he may have property in his hands which is liable, and the opposite party may rely upon those very facts to show the liability of the garnishee.
    Where a garnishee claimed to hold, property under an-assignment for the. ben» efit 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 aU 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; Meld, 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 itselij that the garnishee did hold property of the principal ■ debtor, the instruction asked by the plaintiff should have been given.
    
      Appeal from, the Linn District, GourL
    
    Bebb commenced suit in tbe District Court of Linn county, by attachment, against Hathaway & Parkhurst, former part* ners, and garnished Isaac M. Preston, who was. required to appear at tbe next term of said court, and answer interroga* taries. At tbe succeeding term, judgment was rendered against Hathaway & Parkhurst, for tbe sum of $890.47, and tbe- answer of Preston, as garnishee, was taken. In tbe an* swer, Preston denies, that be is in any manner indebted to said defendants, or that he has in bis possession, or under bis control, any money,, or property of any kind belonging to said defendants; and then goes on to state the following facts: That on tbe 3d day of January, 1854, Hathaway ex* ecuted certain bibs of sale on tbe entire stock of goods then owned by him, and being in bis store at Kingston, to- secure certain creditors, naming them, and tbe sum. due to each, which were- duly recorded; that on tbe 12th of tbe same month, Preston, as attorney for said creditors, with tbe consent of said Hathaway, and by virtue of said bills of sale, took possession of said stock of goods, and sold tbe same j that, tbe sale of said goods amounted, in tbe aggregate, to tbe sum of $2,595.31; that the expenses attending the sale, amounted to the sum of $303.90; that Preston claims for his services as attorney as aforesaid, in. and about the conversion of said goods into money, ten per cent, on the whole am'ount, making the sum of $259.53 ; that after the sale of said goods, on the 27th of January, 1854, he settled with Hathaway for the sale of said goods, and gave Mm credit for the entire proceeds thereof, deducting the expenses aforesaid ; that said credits were applied, first, to the satisfaction of said several bills of sale, and the residue of the proceeds arising from the sale of said goods, was applied as a credit on the claim of Warner,. Clark & Kayler, $360.51; J. B. Daggett, $27.67; J. Spurr, $50.00; which said several claims were in the' hands of said Preston for collection, against said Hathaway, at the time of the sale of said goods, and settlement with Hathaway; and that he is not accountable to said Hathaway, or to Hathaway & Parkhurst, for any money or property whatever.
    The answer further states, that Preston when he took possession of the goods, entered into a written agreement with said Hathaway in relation to said goods, a copy of which is appended to the answer; that said Hathaway received the credit on said claims, as so much money received by Preston, as attorney for the persons named in the agreement; that immediately after the settlement with Hathaway, he notified the persons named in said agreement of said settlement, and the amount received from Hathaway for them; that at the time of the service of the writ of garnishment, Preston held in his hands, of the proceeds of the sale of said goods, the sum of $1,176.15, of which sum $921.25, was in notes; that he took the notes for the goods sold on credit, in the name of I. M. Preston, or bearer, for the reason that he agreed to be responsible for any balance for said goods to said Hathaway, after the payment of said claims; that he had no interest in the sale' of said goods, nor did he act in any other capacity than that of attorney for the persons named in the agreement, and the notes taken in the name of Preston, were taken for the purpose and benefit of the persons named in said agreement; that be received the goods in payment of said claims • that he received for the sale of said goods, the sum of $587.03 in cash, and the residue in notes; that th,ere is now in his hands the amount above stated; and that all that has been paid over, has been paid according to the terms of said agreement.
    The copy of the agreement, appended to the answer of the garnishee, and under which he received the goods, reads as follows:
    “•Whereas, I. N. Preston, attorney for the persons hereinafter named, has now in his hands for collection the following demands against Annis Hathaway, of Kingston, in the county of Linn, in the state of Iowa, in favor of the persons hereinafter named, that is to say :
    One demand or claim in favor of E. 1).-Adams & Co. of Chicago, Illinois, for the sum of . $408.59
    One drawn in favor of J. P. Crane & Co. for the sum ot.. . . 493.57
    One drawn in favor of Ward, Daggett & Co. for the sum of. 697.21
    One drawn in favor of Warren, Clark & Kayler, for the sum of. 360.51
    One drawn in favor of J. B. Daggett, for the sum • of. 27.67
    One drawn in favor of J. Spurr, for the sum of 50.00
    Amounting in all, to the sum of . . . $2,037.55,
    “ And, whereas, the said Preston is about to commence legal proceedings against said Hathaway, to collect the said several sums of money, which said sums of money are justly due the several persons and firms above nam,ed: And whereas, the three first-named claims are secured by bills of sale on goods now in the store: Now, therefore, know ye, that I, Annis- Hathaway, for the purpose of paying said bills of sale, and said several sums of money due as aforesaid, do hereby deliver to said Isaac M. Preston, attorney for claimants, for the consideration and purposes aforesaid, the stock of goods now in the store occupied by me in Kingston, aforesaid, in-eluding tbe entire sto.ck of goods, wares and. merchandise, now in the'store at Kingston aforesaid, and do hereby deliver the possession of,said stock of goods and merchandise, to said Isaac M. Preston, attorney as aforesaid, and do hereby authorize said Preston to sell the same at public outcry or ven-due, for the highest price the same will bring, on the following terms : for all' sums over $25.00, six months credit, with security, at ten per cent, interest: for a less sum than $25.00, money down ; and that the said Isaac M. Preston, after paying all costs and charges attending the sale of said goods, together with the payment of said several demands due the several persons and firms named aforesaid, does hereby agree to account to the said Hathaway, for the residue of the purchase money received for said goods upon the sale made as aforesaid. Witness our hands, this 12th day of January, 1855.
    Ann-is Hathaway.
    L 3SL PRESTON,
    
      Attest: Attorney for claimants.'”
    
    David N. Kiney.
    And appended to the agreement, was a. memorandum, signed “ 1. 'M. Preston, Attorney for claimants,” which was as follows: “In addition'to the above claims, to be secured as aforesaid, there is one claim in favor of Pitch & Hewes,»for the sum .of $449.15; also, one in favor of John Sears, jr., for $642,78.”
    To- this answer of the garnishee, the plaintiff replied, alleging that the garnishee is indebted to said Hathaway & Parkhurst, or to-the said' Hathaway ; that he does owe them, or one of them, igoney or property, which is not yet due; and that said defendant has in his possession, or under his control, property, rights, or credits, of the said Hathaway ; and also denying' the answer, and each allegation thereof, to the first interrogatory answered. To. this replication, there was a general denial, by way of rejoinder. The cause then coming on to a hearing before a jury,. the plaintiff offered D. N. McIntosh as a witness, for thepurpose of proving that the goods- described in the agreement, embraced all the property of Hathaway & Parkhnrst, and of Hathaway, not exempt from execution; and for the purpose of proving that there were oth«r creditors not provided for in said agreement, offered in evidence certain notes and judgments against said Hathaway & Parkhuxst, all of which were objected to by defendant, and rejected by the court, to which the plaintiff excepted. There being no evidence before the jury, other than the answer of the garnishee, the plaintiff then asked the court to instruct the jury as follows:
    “ That if the jury believe from the evidence, that the property mentioned and described in the assignment to Preston, embraced substantially all the property of said Hathaway, not exempt from execution, said assignment is void, and of no effect:
    “ 1. Because 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;
    “2. Because the said assignment authorized a sale of the assigned property on credit.
    “ 3. Because the said assignment provides, that the surplus of the proceeds of the sale of said property shall be paid over to the said Hathaway.
    “ 4.' Because no schedule is attached to said assignment, showing the amount and nature of the property assigned —which instruction the court refused to give, and the plaintiff excepted. The attorneys for the plaintiff then proposed to address the jury, which was refused by the court, the court holding, that the only question for the jury to try, was the truth or falsity of the answer, and instructing the jury to find for the defendant, if the answer was true, and for plaintiff, if false — to all which rulings the plaintiff excepted. The jury rendered a verdict for the defendant, upon which judgment was rendered, discharging the garnishee, with costs. Erom this judgment the plaintiff appeals, and in this court assigns the following errors:
    1. The court erred in ruling from the jury, the evidence offered on the part of the plaintiff.
    
      2. The-court erred in refusing to allow tbe attorneys of tbe plaintiff to address tbe jury.'
    3. Tbe court erred in refusing to give tbe instructions ■ asked for by tbe plaintiff.
    4. Tbe court erred in refusing to allow tbe plaintiff to prove, tbat tbe projaerty embraced in tbe agreement between Preston and Hathaway, was all tbe property of said Hathaway & Parkburst, and of said Hathaway, not exempt from execution. And in this court, the defendant moves to dismiss tbe appeal, for tbe reason tbat the judgment of tbe court below, is not such a judgment as can be ajapealed from.
    
      W. Penn. Glarhe, for tbe appellant.
    
      I. M. Preston, pro se.
    
   Woodward, J.

The first matter presented, is a motion to dismiss tbe appeal, for tbe alleged reason tbat tbe judgment of tbe court below, is not such a judgment as warrants an appeal therefrom. Tbe statute gives an appeal from final judgments and decisions of tbe District Court, “as well in case of civil actions, properly so called, as in proceedings of a special or independent character.” If an appeal does not lie from a judgment discharging a garnishee, neither does it lie from one charging him. Tbe court would be very reluctant to hold, tbat there was no appeal for a-garnishee, from whatever judgment of the District Court j and it is at least doubtful, whether the party would, in a reverse case, take tbe ground implied in this motion. Under tbe provisions of tbe statute, there has arisen a case between this plaintiff and tbe garnishee, as important as that between tbe plaintiff and defendant. Tbe amount involved is no less than twenty-five hundred dollars, and there is no limit to the amount which may be involved in a like proceeding, and the garnishee’s own interest may be at stake, as well as that of others. This proceeding is well adapted, not only to inquire into indebtedness, but to investigate fraud or concealment in the transfer of personal property, and' in assignments for the benefit of creditors. It is a sort of bill -in equity, but still more penetrating. The garnishee may not only be asked the general questions suggested by the statute, but any others, tending to reveal the true character -and consideration of the transaction. , Of course, it is not intended to say that no question or inquiry will be -improper, but the above remark is made as true in general. It is said •this is only a part of -the process of attachment. That is -true in this case. But it may arise under an execution also, •and then it becomes more independent of the mere proceedings in the particular action. It is true, it must have connection with an action commenced, or judgment recovered, and then it becomes almost an action-of itself. It is such in -substance, though not in form. If it must have a name, we will call it a special proceeding. But, whatever we call it, -it cannot be admitted that the law does not intend to give •an appeal to the garnishee. And, if he has-one, the plaintiff -has. Johnson & Stevens v. Butler, ante, 459.

We pass to the principal part of the case. The answer of •Preston, the garnishee, does not set out the bills of sale (as ■they are called) made to Adams, Crane, and Baggett; and, in this state of the answer, it cannot be seen whether they were absolute bills of sale, in payment of their debts, or -assignments to raise the me’ans to pay them. Therefore, the ■question is in relation to the balance of the property or fund, •after their payment. It is manifest that the instrument made to Preston, was an assignment only. .It recites the indebtedness to various persons, and that for the purpose of •paying -them, Hathaway delivers the stock of goods in the •store occupied by him, and authorizes Preston to sell them at public auction, allowing him to give credit on all sums over twenty-five dollars, and requiring him to account to Hathaway, for the remainder of the proceeds- of the sale, after paying tbe debts and expenses. Tbis stock of goods is placed in tbe garnisbee’s bands, in gross. Portions are not set apart for tbe several creditors. And it is apparent tbat they were not taken in payment. In tbis state of things, tbe garnisbee answers, tbat be bas no property, rights, or credits of tbe defendants in bis bands, but proceeds to make a statement, and to answer interrogatories, in relation to tbis transaction, and shows tbe above assignment to himself, for tbe payment of tbe debts.

Tbe Code, section 1872, authorizes tbe plaintiff to controvert any facts contained in tbe answer and specified by him, and issue being thereupon joined, may be tried in tbe usual manner. And by section 977, it is enacted, tbat no general assignment of property by an insolvent, or in contemplation of insolvency, for tbe benefit of creditors of tbe assignor, shall be valid, unless it be made for tbe benefit of all bis creditors, in proportion to tbe amount of their respective claims. Tbe plaintiff (intending it under tbe above sections) alleged tbat tbe assignment to Preston embraced all tbe property of tbe defendant no.t exempt from execution, and was made with intent to binder and delay creditors, and was fraudulent in law and in fact as against said creditors. After demurrer, and motion for more specific statement, tbe plaintiff avers, tbat tbe garnishee bas in bis possession, or under bis control, property, rights, or credits of tbe defendants, and denies tbe answer, and each allegation thereof, to tbe first interrogatory, under which tbe present questions arise. Tbe plaintiff then offered evidence to show, tbat tbe assignment contained substantially all of tbe property of tbe defendants, and tbat they were indebted to other persons than those named in tbe assignment to Preston; which evidence was rejected by tbe court, and no other evidence was introduced. His counsel then sought to address tbe jury, but. tbe court, bolding tbe only issue to be on tbe truth or falsity of tbe garnisbee’s answer, and tbat there was no evidence against it before tbe jury, refused to permit them; whereupon tbe jury found a verdict for tbe garnisbee. In tbis, we think, tbe court erred. Tbe garnisbee is not com-pelledto answer tbe general questions categorically, but may go on and state tbe facts and circumstances, and leave tbe decision of tbe question to tbe court. This is for bis safety. It is sometimes a difficult and a complicated question, and be bas a right to throw tbe decision of it upon the tribunal. Thus, in this case, be first denies generally having property in bis bands belonging to tbe defendants, and then proceeds to state tbe circumstances under which be does, in fact, bold property of theirs; and tbe legal question is, whether be so bolds it, as to be liable to tbe plaintiff’s call. Now, in bis statement of tbe whole facts, we may show that be is liable, notwithstanding tbe general denial. Thus, suppose be states that be bolds certain property by an assignment, in relation to which be discloses such matter, as shows that it is fraudulent against creditors, or void for any cause. These statements would override bis denial of bolding property; and •other cases might be put, leading to tbe same conclusion. It is probably true, that tbe truth or falsity of tbe answer, was'the only question for tbe jury. But it was not tbe truth or falsity of any one proposition, necessarily, nor of any part of tbe answer in particular; but it was in relation to tbe leading ultimate denial, of having no goods of defendants in bis bands. It is difficult to put tbe position here intended to be taken, into a general proposition. In some oases, a single fact or statement may be tbe point in issue, but then it would be one conducing to show tbe falsity of tbe general averment, that be bad no property. Here, defendant says be bas no property, &c., but chooses to go on and state that be does in fact bold property, &e., but not so as to be liable. Now, in bis statement of tbe facts, we can well see, there is ground on which to base a fair argument, that be did so bold it, so as to be liable. And this would be pertinent to tbe main denial.

W,e will try to explain a little farther. Let us look at tbe position of tbe parties. Tbe garnishee says be bas no property of defendants in bis bands. Tbe plaintiff controverts this, and sajs be bas such property. Tbe answer does,not mean legally, that be literally bas none; but that be bas none liable to tbe plaintiff in tbis proceeding. That this is the true meaning, is manifest, both from the legal nature of the case, and from the fact that the answer proceeds to state how he does,, in fact, hold certain property of theirs; impliedly arguing that he does n<?t hold it,, in such manner, and under such circumstances, as to be chargeable on account of it. He has a right to set forth all the facts, as is here done,, and leave the legal question to the tribunal-, for it may often involve difficult legal inquiries. And we observe from this,, that the detail of circumstances may be all true, and yet the defendant be liable; or in other words, his general denial be legally untrue; for notwithstanding the truth of those facts, he may have in his hands property which is liable;; and farther, the opposite party may rely upon those very facts and statements (as in this case he does), to show the liability. Therefore, it is the truth of the general denial which, in this case, is ultimately in issue; and the counsel should have been permitted to show the error of the general denial, by the matter contained in the answer.

It follows, therefore, that the court should have given the instruction asked by the plaintiff. This was- not refused upon the ground that it was not law, but because, as the court held, there was no evidence to which it would apply. The answer being evidence, and it being now held that the counsel have a right to address- the jury on the question of holding property, as before explained, they have the consequent right to make out from the answer, if they can, the point of fact suggested in the- instruction asked by them.. This, however, we limit at present to the first ground assigned by the counsel. We do not pass upon the second, third, and fourth grounds taken in the instructions.

Other errors arc assigned on the refusal of the testimony of McIntosh, the refusal of evidence, showing that the assignment contained all the property of Hathaway & P,ark-hurst, and that there were other creditors not named therein,, and not provided for. This cause having to be decided by two, only of the members of the court,, and the court being-. divided upon tbe questions last named, in tbe present state of tbe pleadings, tbej are not decided.

It is considered, therefore, that tbe judgment of the District Court be reversed, and that tbe cause be remanded, with directions to proceed in accordance with this opinion. 
      
       Isbell, J., having been of counsel, took no part in the decision of this cause.
     