Simpson v. Remington

• Decision Date: 28 November 1899
• Citation: 59 P. 360,6 Idaho 681
• Parties: SIMPSON v. REMINGTON
• Court: Idaho Supreme Court

59 P. 360

6 Idaho 681

SIMPSON v. REMINGTON

Supreme Court of Idaho

November 28, 1899

PRACTICE-DEMURRER.-Held that the complaint states a cause of action, and demurrer properly overruled.

PRIMA FACIE CASE-NONSUIT.-When the evidence of the plaintiff establishes a prima facie case, motion for nonsuit at close of plaintiff's testimony is properly denied.

DENIAL ON INFORMATION AND BELIEF.-A denial on information and belief of matters of public record is not sufficient.

CONFLICT OF TESTIMONY-GARNISHEE.-Where there is a substantial conflict in the testimony, the verdict of the jury will not be disturbed on appeal.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Judgment sustained, with costs in favor of respondent.

James W. Eden, for Appellant.

Section 4470 of the Revised Statutes, provides that a party may have an execution issued upon a judgment at any time within five years after the entry thereof. We believe it is fatal to the complaint when it fails to allege either that an execution was issued and returned or that the defendant, Tanaker, was insolvent, and that these facts were made known to the court by affidavit or complaint before it made the order of February 5, 1895, allowing this suit. (See Vordermark v Wilkinson 147 Ind. 56, 46 N.E. 336, and cases cited.) Chapter 2, title 9 of the Revised Statutes, under which this suit was brought, is a substitute for a creditor's bill in the old chancery practice. (See Adams v. Haskett, 7 Cal. 201; Pacific Bank v. Robinson, 57 Cal. 522 40 Am. Rep. 120, and note; McCullough v. Clark, 41 Cal. 298; Swift v. Arents, 4 Cal. 390; 24 Am. & Eng. Ency. of Law, 601.)

S. C. Winters, for Respondent.

This action is brought under section 4309 of the Revised Statutes relative to the issuance and services of attachment and not under the provisions supplemental to execution. Under said section 4309 the garnishee is directly liable to the plaintiff for the amounts of any credits, property or debts in his possession belonging to the attachment debtor until the attachment is disposed of and the judgment is satisfied, and gives the plaintiff a right to sue the garnishee at any time whether the attachment debtor is solvent or insolvent. (Roberts v. Landecker, 9 Cal. 262; Herrlich v. Kaufmann, 99 Cal. 271, 37 Am. St. Rep. 50, 33 P. 857.)

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This is an action supplemental to execution, and brought, by order of the court, under the provisions of section 4510 of the Revised Statutes; at least, the allegations of the complaint would indicate that it was brought under the provisions of said section. The defendant, who is the appellant here, filed a general demurrer to the complaint, which was overruled. The appellant then answered, and attempted to deny, on information and belief, that the execution mentioned in the second paragraph of the complaint had been returned unsatisfied, and denied the other allegations of the complaint. The suit was tried by the court and a jury, and verdict and judgment returned and entered in favor of the plaintiff for $ 540 and costs of suit. This appeal is from the judgment and order denying a new trial.

The appellant assigns as error the overruling of the demurrer to the complaint. After a careful consideration of the complaint, we conclude that it states a cause of action, and that it was not error to overrule the demurrer.

A motion for a nonsuit was made at the close of plaintiff's evidence, and overruled, which overruling is assigned as error. We think plaintiff's evidence makes a prima facie case, and the court did not err in denying the motion for nonsuit.

It is contended by ...