Caldwell Banking & Trust Co. v. Porter

• Decision Date: 06 October 1908
• Citation: 97 P. 541,52 Or. 318
• Parties: CALDWELL BANKING & TRUST CO. v. PORTER et al.
• Court: Oregon Supreme Court

97 P. 541

52 Or. 318

CALDWELL BANKING & TRUST CO. v. PORTER et al.

Supreme Court of Oregon

October 6, 1908

On petition for rehearing. Petition denied.

For former opinion, see 95 P. 1.

BEAN, C.J.

Defendant garnishee stoutly insists that the court erred in directing a verdict against it, for the reason that there was no proof on the trial, that plaintiff had commenced an action against Porter, Jones & Test, or that a writ of attachment had issued in such action and been served upon it. In a separate defense, set up in its answer to plaintiff's allegations defendant avers that the right, claimed by it, to set off the notes of the individual members of the firm of Porter, Jones & Test against the amount due from it to the firm was exercised, and such notes canceled and delivered to the makers, and payment thereof duly ratified by them "prior to the date of the service of the notice of garnishment on said bank, and prior to the commencement of the said action by the plaintiff against said firm, as mentioned and set out in plaintiff's allegations," which would probably be considered, after verdict, as an admission that such action had been commenced and a writ of attachment duly issued and served.

However that may be, the record is, as noted in the original opinion that plaintiff on the trial made formal offer of the procedings and record in the main action, but upon defendant's objection the court declined to admit them in evidence. The trial, however, proceeded, and at the close of plaintiff's testimony defendant moved for a nonsuit, on grounds not necessary to state here, but not including a failure of proof in the particular mentioned. The motion was overruled, and defendant then gave evidence tending to support the averments of its answer, and at the close of all the testimony the court, on motion of plaintiff, directed a verdict in its favor, for the reason that defendant had failed to show any authority from the partnership of Porter Jones & Test to pay or apply the funds of the firm to the individual indebtedness of its members. To this ruling defendant excepted, and from the judgment rendered on the verdict it appeals, bringing up only the transcript in the garnishee proceedings, and no part of the record in the main action. It now insists that the verdict and judgment for plaintiff cannot stand, because there was no proof of an action by plaintiff against Porter, Jones & Test to support...