Kirby v. Corning

Orton, J.

The garnishee having disclosed that Clara E. Tucker claimed a part of the moneys in his hands sought to be, reached by the plaintiffs in their proceeding of garnishment, and she having been ordered to interplead according to the provisions of section 2767, R. S., and having answered, claiming that the sum of $220 of such moneys belonged to her in her own right, and the plaintiffs having taken issue, and proceeded to trial before a jury on such issue, it was then too late to object to her answer that it was not verified or out of time. The questions put to the garnishee on the trial, relating to the settlement of the suits against the insurance company, and the settlement of the plaintiff’s claim out of the insurance moneys, and the agreement of the parties in respect to the same, may have been proper, and the sustaining of the respondents’ objection to the same may have been erroneous; yet such error, if any, was cured by the garnishee afterwards testifying fully as to all the matters embraced in-such inquiry. He stated fully that he settled with the insurance .company and obtained a certain amount on account of the policy to Alpheus Tucker, and the one to Clara E. Tucker, and that Clara E. consented to the use of her money in the hands of the garnishee in' the payment of the plaintiffs’ claim and other claims against her husband; and that, after the moneys were received by him, Clara E. Tucker countermanded and withdrew such consent.

It is objected that she could not countermand such authority, and that she should be estopped from so doing. But she unquestionably could so countermand the authority of her agent *602 before the money was actually paid to the plaintiff; for her promise or agreement was merely voluntary and without consideration, and verbal.

It appeared in evidence that Alpheus Tucker, the husband, owned a stock of goods within a store building belonging to Clara E., his wife, and that they sold both the goods and store to one Cone, and that she deeded to Cone the store building and lot on which it- stood, and received in consideration therefor certain tracts of pine lands, which were deeded to her by Cone; and Cone testified fully about this transaction. The learned counsel of the appellants offered in evidence a certified copy of that deed from Cone to her, and the court sustained the objection of the respondents to such offer, and this is assigned as error. The deed, or a certified copy of it, was probably admissible and competent, evidence, but it was certainly quite immaterial and unnecessary as bearing upon the claim that the property in the pine lands was nominally in Clara E., the wife, but that they really belonged to Alpheus Tucker, the: husband, and that the conveyance was to defraud his creditors. There was nothing in the peculiar foi’in of the deed itself which could throw any light upon the question, and the fact that such a deed was actually made was fully in evidence, and all the facts and circumstances relating to it.

It appeared in evidence, as near as we can understand it (for the evidence was very meager and somewhat disconnected, and not so clear to us as it evidently is to the learned counsel on both sides, who knew many things which were not proved), that the store building insured was purchased by Clara E. Tucker, and the legal title was conveyed to her, and that she formerly owned a store and lot at another place, which she sold to Cone, and Cone deeded to her on the purchase of it certain pine lands of considerable value. She therefore had a separate estate before she bought the store on which she obtained the insurance money. It does not appear whether she used the proceeds of these pine lands as purchase money of the *603 store, but it may well be presumed that she did, in the absence of all proof on the subject, when her title is questioned on this record on the ground that it is not shown that she purchased the store building and lot with her own means or separate property.

There was no motion for a new trial, and we shall therefore say nothing more on the merits of the case. The charge of the learned judge appears to have been clear and fair, and not liable to criticism. The jury found that the garnishee held in his hands $70 belonging to the defendant Alpheus Tucker, and $220 belonging to Clara E. Tuck&r, and the court ordered the $220 paid to Clara E. Tuoker, and rendered judgment in her favor against the plaintiffs for costs. The practice in such a case is new and unsettled, and whether this order was proper, or whether judgment should have been rendered in favor of the claimant against the garnishee in such a case, or whether neither course should be pursued and the money left in the hands of the garnishee, we do not choose to decide op this appeal, because the question is not involved, as the plaintiffs are not interested in it, and it is immaterial to them how the claimant qbtains the money after it has been duly found to belong to her, or whether she gets it at all. The judgment for costs was clearly proper. The finding appears to be ready for the plaintiffs to take judgment against the garnishee for $70.

By the Court. — The judgment of the circuit court is affirmed. ■