Union P. RY. Co. v. Gibson

• Decision Date: 19 November 1890
• Citation: 25 P. 300,15 Colo. 299
• Parties: UNION PAC. RY. CO. v. GIBSON.
• Court: Colorado Supreme Court

25 P. 300

15 Colo. 299

UNION PAC. RY. CO. v. GIBSON.

Supreme Court of Colorado

November 19, 1890

Commissioners' decision. Appeal from Larimer county court.

Teller & Orahood, for appellant.

John C. Hanna and George W. Bailey, for appellee.

BISSELL, C.

This was a proceeding in garnishment, instituted by Bailey, as a judgment creditor of Gibson, to collect from the railway company the money claimed to be due from it to Gibson. In the county court, from which, by appeal, the case comes here judgment was rendered against the railway company for $30 and costs. Under the law which determines and limits the liability of garnishees, the judgment against the company cannot be maintained. According to the settled rule governing such cases, the liability of the garnishee must be made affirmatively to appear in order to justify a judgment against him. Richards v. Stephenson, 99 Mass. 311; Drake Attachm. § 452 et seq. The obligation to establish that liability by proof is with the creditor who seeks to obtain the judgment. It is immaterial as to the precise method by which the liability is established. It may appear from the answer of the garnishee, or it may be established by collateral proof, where issue is taken on the denials of the answer. In either event, the duty is precisely the same, and always exists. In this case it did not appear from the answer of the garnishee that it was indebted to Gibson. On the contrary, the answer denied all indebtedness. The only testimony which was introduced to overcome this denial came out of the cross-examination of the agent of the company, who answered as to the indebtedness claimed to exist in favor of Gibson. By agreement of the parties, the answer was taken orally. Upon the direct testimony, the witness answered nondebit. On cross-examination, however, it transpired that the garnishee was engaged in running a quarry at Stout, in Larimer county, which was a place remote from any town, and without other inhabitants than those in the immediate employ of the railroad company. There the company had established a boarding-house, and placed a man in charge. The same person kept a store, and furnished supplies to the men employed. The arrangement under which Clinton ran the place substantially provided that he should board the men at a fixed rate per week, and furnish them with whatever they wanted, and the company would be answerable for the bills thus contracted. From month to month, as the men worked, they were paid their wages, less the board and store bills contracted with Clinton, who was paid directly by the company. Gibson, the debtor, had been in the employ of the company for a couple of years, and this course had been pursued with him ever since his...