Eddy v. Providence Mach. Co.
| Decision Date | 25 April 1885 |
| Citation | 22 A. 1116,15 R.I. 7 |
| Parties | EDDY v. PROVIDENCE MACH. CO. [1] |
| Court | Rhode Island Supreme Court |
John J Arnold, for plaintiff.
Dexter B. Potter, for defendant.
The defendant is sued for neglecting to make an affidavit as garnishee in a suit by the plaintiff against Payson in the justice court of Providence. The return-day of the writ in the justice court was June 26, 1882. The defendant, by its clerk, upon whom the copy of the writ was served, made its affidavit, which was filed in the clerk's office of the justice court, June 20, 1882. In a corner of the sheet, above the affidavit, were placed the words, "Justice court city of Providence, June 29, 1882." The plaintiff therefore, claims that the affidavit could not apply to the original case. We think the date was no part of the affidavit. It was a mere memorandum placed above it for convenience in reference. It is not referred to in the affidavit, nor made a part of it in any way, but, on the contrary, the case is therein accurately designated. The affidavit was duly made, duly filed, and sufficiently described the case to which it referred. The insertion of an erronous date above the affidavit could not change those facts. It does not appear that there was any other case between the parties named to which the affidavit could relate. The defendant all that is required of a garnishee by law. But the defendant was charged as trustee of said Payson by the justice court, the memorandum on the papers being "Prov. Machine Co. chg'd. no aff't." Hence the plaintiff in this action claims that such charging is in the nature of a judgment, which is conclusive upon this defendant. As garnishment is a statutory proceeding, it is only by force of statute that the charging of a garnishee can in any case operate as a judgment. But, in those states where it has this effect, it is not conclusive as to the amount owing by the garnishee to the attachment defendant. Barton v. Allbright, 29 Ind. 489; Drake, Attachm. (4th Ed.) § 707, and cases cited. If so, as between them, it cannot be conclusive as to whether anything is owing. The conclusiveness of a finding against a garnishee applies only to the suit in which it is made. The statutes of this state do not treat the charging of a garnishee as a judgment. By Pub. St. R.I. c. 208, § 13, if he makes a disclosure of funds in his hands, the plaintiff may sue for the amount, or so much as will satisfy his judgment against the defendant. The execution does not run against the garnishee, though by chapter 222, § 21, it runs against the fund, without providing any immediate remedy if the garnishee refuses to turn it over. Even after an execution issues, he may avoid his liability altogether by making an affidavit under the provisions of section 22. The only case in which the court acts judicially with reference to the garnishee is under chapter 213, § 10, to determine, in case he "shall appear," whether he "is properly chargeable as the trustee of the defendant, and, if chargeable, to what extent." There is no provision in the statute for the court to charge a garnishee upon his default to make an affidavit. His liability in that case is determined by chapter 208, § 18, [1] and is the same that it was before the passage of the act authorizing the...
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