Willis v. Holmes
| Decision Date | 23 December 1895 |
| Citation | 42 P. 989,28 Or. 265 |
| Parties | WILLIS v. HOLMES (SMITH, Garnishee). [1] |
| Court | Oregon Supreme Court |
Appeal from circuit court, Douglas county; J.C. Fullerton, Judge.
Garnishment proceedings by P.L. Willis against M.B. Holmes, defendant and G.A. Smith, garnishee. Judgment for garnishee. Plaintiff appeals. Reversed.
W.R. Willis, for appellant.
J.W Hamilton, for respondent.
This is a proceeding by garnishment against G.A. Smith an alleged debtor of the defendant, Holmes. On or prior to September 6, 1893, the plaintiff commenced an action against Holmes to recover money, and caused a writ of attachment to be issued and served upon Smith, with notice that all money due from him to Holmes was thereby garnished. Subsequently and on December 3, 1893, he recovered a judgment against Holmes for the sum of $1,270.30, and $49.80 costs and disbursements. Smith's answer to the garnishment being unsatisfactory to plaintiff, he thereupon filed and served written allegations in the nature of a complaint and interrogatories upon him, wherein it is alleged: "That on the 6th day of September, 1893, the date of the service of the attachment on said garnishee, George A. Smith, he was justly indebted to the defendant M.B. Holmes in the sum of $6,500,--$1,600 for land sold and conveyed by the defendant to said garnishee, and $4,900 for promissory notes payable to said M.B. Holmes, and by him sold and conveyed to the said George A. Smith, garnishee." The garnishee answered, denying that, at the date of the service of the garnishment, he was indebted to Holmes in the sum of $1,600 or any other sum, for land sold and conveyed, or $4,900, or any other sum, for promissory notes sold to him by Holmes, or that he was justly or at all indebted to Holmes in the sum of $6,500, or any other sum of money whatever. For a further and separate defense, he alleged that on August 15, 1893, he purchased from Holmes three promissory notes, of the face value in the aggregate of $4,215.50, and on August 18, 1893, one promissory note, of the face value of $500 (which notes are each particularly described in the answer), and that, on the last-mentioned day, he purchased of Holmes two tracts of land, at the aggregate price and value of $1,600; that the promissory notes and land were sold to him by Holmes at the agreed price of $5,500; that such purchase price was wholly paid by him on the said 18th day of August, 1893, and prior to the service of garnishment; and that such sales and purchases are the identical transactions referred to and set out in the plaintiff's allegations or complaint. To this a reply was filed, denying the payment as alleged in the answer, and admitting all the other allegations. Upon the issues thus joined, a trial was had before a jury, which resulted in a verdict in favor of the garnishee, and, from the judgment which followed, the plaintiff appeals.
The record discloses that after the jury had been impaneled, and the case stated by counsel, the plaintiff claimed that, as the only issue in the case was one of payment, the burden of proof was on the garnishee, and that he should therefore submit his evidence first, which he declined and refused to do, whereupon plaintiff moved for judgment on the pleadings, which was denied, and such ruling is assigned as error. The motion, under the circumstances was properly overruled. There was an issue of fact presented by the pleadings for determination, and, while it remained undisposed of, no judgment could have been entered on such motion. If, as the case then stood, and the plaintiff now contends, he was entitled to a verdict, he should have moved the court to direct the jury to return a verdict in his favor, and not for a judgment on the pleadings. But as the court then ruled, and subsequently instructed the jury, that the burden of proof was on the plaintiff to show that the garnishee had not, prior to the service of the garnishment, paid for the property purchased from Holmes, it is proper to consider that question here. The allegations of the parties take the place and...
To continue reading
Request your trial
-
Bannister v. Lucas
...v. Dalton, 158 Mo. 323;National Bank v. Hellyer, 53 Kans. 695; Walker v. Russell, 73 Ia. 340; Liesemer v. Burg, 106 Mich. 124; Willis v. Holmes, 28 Or. 265. The defendant's main reliance is upon the exceptions presenting the question of whether the presiding judge in his charge to the jury ......
-
Smith v. Mills
... ... discharge of her debt. The burden is on the respondent to ... prove payment. Willis v. Holmes, 28 Or. 265, 268, 42 ... P. 989; Peterson v. Thompson, 78 Or. 158, 151 P ... 721, 152 P. 497. And since the payment relied ... ...
-
Caldwell Banking & Trust Co. v. Porter
...it made such charge with the assent, express or implied, of all the partners. Coote & Jones v. Bank of United States, supra; Willis v. Holmes, 28 Or. 265, 42 P. 989. We read the entire testimony, and do not find any evidence that all the partners consented or agreed that the individual debt......
-
Pacific First Federal Sav. and Loan Ass'n v. Flathead Properties, Inc.
...has the burden of proving that the payment to the debtor was made before the notice of garnishment was served. Willis v. Holmes, 28 Or. 265, 42 P. 989 (1895). The trial court here would have been justified in concluding that the garnishee failed to carry that As to the salary advance, the e......