
    Large v. Moore.
    1. Garnishment: judgment: answer, a judgment in garnishment against an attorney for moneys collected and held by him for the judgment defendant is not a sufficient defense to an action against the garnishee for such moneys by an assignee of the judgment defendant, if it is shown that at the time the answer in garnishment was filed the garnishee had knowledge of the fact that the claim upon which the money had been collected by him had been assigned to the plaintiff, but that he failed to set up that fact in his answer.
    
      Appeal from Dubuque District Oourt.
    
    Thursday, October 20.
    The facts are stated in tbe opinion of tbe court.
    
      Barlcer for tbe appellant.
    
      Beach & Gray for tbe appellee.
   Lowe, J.

Tbe case is this: A note made by one John D. Graffort, to tbe order of E. M. Downs, and indorsed in blank by tbe latter, was placed in tbe bands of tbe defendant, Moore, for collection by one E. S. Pork, wbo took from tbe said Moore a receipt for tbe same. A judgment was obtained on this note before a justice of tbe peace, in tbe name of Downs, which, on an appeal to the District Court, was affirmed. Tbe money upon this judgment, $94tVv, was made by execution, and paid over by tbe sheriff to tbe defendant. Tbe plaintiff claims to have been tbe assignee of said note, and entitled to tbe money, and after demand and a refusal by Moore to recognize bis claim, tbe plaintiff brings this suit to recover tbe same,’ alleging, in addition to tbe above facts, that defendant knew that be (tbe plaintiff), was tbe owner of said claim, and that, by tbe neglect, want of diligence, and fraud of said defendant, said claim was lost to him. Defendant controverts tbe above statement in its material parts, denying that he ever knew or heard that plaintiff was the owner of said claim, and that he collected the same for, and on account of Downs, whom he supposed to be the rightful claimant. He farther specially defends, by setting up the fact, that after he had collected said money, as the agent of Downs, one Sawyer sued Downs in attachment, and garnished him, the defendant; that such proceedings were had thereon; that a judgment was rendered against him as .garnishee, for $75.15, and costs of said tax at $5.95, which he has paid out of the proceeds of the claim collected as aforesaid, not knowing at the time that the plaintiff had any interest in, or right thereto. He further set up a claim of $20 for his services as the agent of Downs, in collecting said claim. The plaintiff’s reply'to this, in substance, is that the garnishment proceedings are no protection in law to the defendant, for the reason that he knew the plaintiff was the real owner of the money in his hands, or, if he did not, he knew that some third person, and not Downs, was the rightful owner, and that he was bound to disclose that fact in his answer to the garnishment, which he did not. The issues of fact thus made by the pleadings were found under the evidence introduced, by the jury in favor of the plaintiff.

Our attention is called to two errors which it is claimed the court committed in the trial of the cause, namely: in modifying the defendant’s instructions before given to the jury, and in overruling his motion for a new trial. The important question in this controversy, and the one upon which defendant’s liability mainly turns, is whether he was informed or had knowledge that the note he was collecting did not belong to Downs, and his negligence in failing to make that fact known in his answer to the garnishment. If he had done so, possessing the information, it is reasonable to infer no judgment would have been rendered against him, and the plaintiff’s rights thereby not affected. Now, the defendant, in drawing his instructions, otherwise unobjectionable, perhaps, fails to cover the full breadth of the issue made between himself and the plaintiff, but falls short thereof, by restricting the plaintiff’s right to recover, unless be can show, or does show that he, the defendant, knew that the note in question was the property- of him, the said plaintiff. Now, the court simply amplified this, so as to make it include the further idea, that if the defendant knew that Downs (in whose name the suit had been brought), did not own the note, and he failed in the garnishee proceeding, to make that known, his defense would be incomplete. The modification was only intended to make the instruction as broad as the issue between the parties; and this, without question, was proper.

The third, and only other instruction asked by the defense, was of the following purport: If plaintiff, or his attorney, had notice of the pendency of the garnishee proceeding, it was their duty to have intervened and claimed the money, or notified Moore, the defendant, that he might have alleged that fact. Omitting to do either, they would be guilty of laches. But the court added that their laches would not justify defendant in neglecting to make known all the facts communicated to him, and of which he had notice in his garnishee answer. The instruction, as asked, could properly have been refused altogether, upon the ground of the entire absence of any testimony whatever, that the plaintiff, or his counsel, had any notice of the garnishment. - But we fail to see that the omission referred to, if true, would justify the defendant in withholding or concealing facts within his knowledge, which, if made known, would in all probability have protected the rights of an innocent and Iona fide claimant of the money.

.The motion for a new trial was based, first, upon these supposed errors in modifying the instructions just alluded to. Second, that there was no evidence that the signature of Downs, who indorsed the note, was genuine. This was not requisite; prima facie it was so unless denied under oath. Third, that the verdict was excessive. In overruling the motion the court remitted $15.00. Fourth, that there was no demand for the money before the commencement of the suit. This was clearly proven by the witness, Beach, and admitted by the defendant in his testimony. On the merits of the case, the evidence was conflicting, with no preponderance in favor of the defense, and therefore the verdict was not against the weight of evidence. This disposes of the alleged error in overruling the motion for a new trial, and the judgment is

Affirmed.  