Pinyan v. Berry

• Decision Date: 26 October 1889
• Citation: 12 S.W. 241
• Parties: PINYAN <I>v.</I> BERRY <I>et al.</I>
• Court: Arkansas Supreme Court

12 S.W. 241

PINYAN

v. BERRY et al.

Supreme Court of Arkansas.

October 26, 1889.

Appeal from circuit court, Madison county; HENRY GLITSCH, Special Judge.

Action by M. E. Pinyan, administratrix, against T. G. Berry and others, for a sum of money which the court had theretofore ordered to be paid plaintiff's intestate by defendant Berry, in a suit in which intestate was plaintiff, and one McReynolds was defendant, and defendant Berry was garnishee. Defendants alleged that the judgment was void, and that the mortgage had been satisfied. There was judgment for defendants and plaintiff appeals, alleging that the judgment was against both the law and the evidence.

E. S. McDaniel and Crump & Watkins, for appellant. C. R. Buckner and J. D. Walker, for appellees.

PER CURIAM.

An order to pay money made by the court upon a garnishee, after his failure to appear in the attachment proceeding wherein he was garnished, is not a judgment against the garnishee, and does not determine his liability to pay. Giles v. Hicks, 45 Ark. 271; Railway Co. v. Richter, 48 Ark. 349, 3 S. W. Rep. 56. The garnishment proceeding is not instituted to settle the question of indebtedness between the attached debtor and third persons, (Moore v. Kelley, 47 Ark. 219, 1 S. W. Rep. 97,) and the only effect of the court's order upon the garnishee is to confer upon the attaching creditor of his creditor the same right to collect whatever he may owe his attached creditor that the latter had against him, i. e., the garnishee. Giles v. Hicks, supra. When suit is instituted by the attaching creditor to recover the garnished debt, the order made in the attachment proceeding does not preclude the garnishee from setting up any defense he might have made before the garnishment. The chancellor heard the witnesses orally, and had opportunities of judging of their credibility that we have not; and his finding of fact, if opposed to the preponderance of evidence at all, is not so grossly opposed to it as to warrant our interference. Affirmed.