Opinion
(June Term, 1831.)
In a proceeding on a garnishment under the Act of 1793 (Rev., ch. 389), it is unnecessary for the plaintiff to reply to the answer of the garnishee on oath, where the garnishment admits the possession of property received from the defendant, but sets up a distinct title.
The plaintiff sued out an attachment in the county court against one Alexander Rea, and summoned as garnishee the defendant's intestate, who stated in his affidavit that he had no effects in his hands belonging to Rea, but that he had received of Rea several articles of property, (97) specifying them and their value, in discharge of a debt due to himself. The plaintiff replied, and an issue was made up, which was found in favor of the plaintiff, and the defendant appealed to the Superior Court, where a verdict was again returned for the plaintiff, before his Honor, Swain, J., at ROWAN, on the last circuit. After verdict, the defendant's counsel moved to dismiss the proceeding, upon the ground that the plaintiff had filed no affidavit, denying the truth of the defendant's answer, and also in arrest of judgment. Both motions were overruled, and the defendant appealed.
Gaston for plaintiff.
Nash for defendant.
The first objection in this case is that the plaintiff filed no affidavit denying the truth of the answer of the defendant's intestate upon his garnishment. The Act of 1793 (Rev., ch. 389), which governs this case, declares that when the garnishee shall deny that he or she owes to or has property in his or her hands belonging to the defendant, and the plaintiff in the attachment shall, on oath, suggest that the garnishee owes to or has in his or her hands property belonging to the defendant, then, etc. The act further declares that when the garnishee makes such a statement of facts, that the court before whom such garnishment shall be made cannot proceed to give judgment thereon, then the court shall order an issue to be made up. The plaintiff's oath seems to be necessary, in order to induce the court to proceed further, when the garnishee either positively denies that he owes the defendant anything or has in his hands any property belonging to him. The garnishment in the present case was not of that precise kind. The garnishee states that he owed the defendant nothing, but that he had property in his possession which he received from the defendant, but which he received in discharge of a debt due to himself. So that the plaintiff's affidavit was not necessary to induce the court to go farther. The only question was, Who had a right to the property, the defendant or the garnishee? It was such a statement of facts made by the garnishee that the court could not (98) proceed to give judgment without the intervention of a jury; and they proceeded to empanel one, as the act directs. But suppose the plaintiff's affidavit was necessary, no objection for the want of it was made, when issue on the garnishment was joined. And after the verdict in the Superior Court, for the first time exception is taken to the proceedings for want of that affidavit. I think there was nothing in it either to induce the Court to dismiss the proceedings or arrest the judgment.
PER CURIAM. Judgment affirmed.