JAN. TERM, 1856. DIINNEGAN v. BYERS. *PUNNEGAN ET AL. [d492 v. BYERS. In ordinary suits at law, where a motion for a new trial is overruled, and the party making the motion dues not except, he is prtsumed to have acquiesced in the decision, and will nut be heard to question i t s correctness on error or appeal. Quere : Does not the same rule apply in garnishment cases? Where a garnishee has had reasonable time to ascertain whether his creditor still holds, or has parted with, the evidence of his indebtedness, he will not be allowed, after judgment of garnishment has been rendered against hint, a new . trial, unless he shows that he has used dtie diligence. • Our statute of garnishment is broad enough to cover debts due after the issuance and service of the writ ; and if not due at the time the garnishee en-surers, the court would have the power to continue the case until maturity of the debt, or render judgment with stay of execution. Appeal from _Independence Circuit Court. okBEAUFORT H. NEELY, H Circuit Judge. Fowler & StiUwell, for the appellants. Wm. Byers, contra. ENGLISH, C. J. It appears from the transcript iu this case, that, on the 20th
DUNNEGAN V. BYERS. VOL. 17 of March, 1855, Wm. Byers recovered said defendant at the time of service of judgment in the Independence circuit the writ of garnishment upon them in court, against James Dunnegan, Sr., this case, were indebted to the said for $150, debt, 810.12 damages aud James Dunnegan, Sr., in a greater sum for costs. That, on the 28th of July than the amount of the said judgment of the same year, he sued out a writ of in favor of said Byers against said garnishment against James Dunnegan, James Dunnegan, Sr., and which be-Jr., and William Hargiss, reciting said comes due on the 1st of March, 1856 ; judgment, and alleging that they had that the said Byers, on the 20th day of in their hands and possession, goods March, 1855, recovered judgment and chattels, moneys, credits and against the said James Dunnegan, effects, belonging to the judgment Sr., as alleged, &c., for the sum of $150 debtor, &c. as his debt, and $10.12 as his damages, At the return term of the with his eosts, and that said debt, dam-writ (September, 1855,), allegations ages and interest thereon amount to 4931 *and interrogatories were filed the sum of $164.00. It is therefore con-by Byers, in accordance with the stat-sidered by the court, that the said ute, against the garnishees ; to which plaintiff do have and recover, of and they answered, among other things, from the said d'efendants as garnishees that on or about the 1st of March, 1855, of the said James Dunnegan, Sr., the they purchased of said James Dunne-said sum of $164 with interest thereon, gan, Sr., a stock of goods, of the value at the rate of 6 per cent, per annum, of, from $1650 to $1700. That the from this date until paid : and that ex-terms of the purchase were a credit of ecution in thi, case shall not issue un-twelve months, with interest, with the til *the 1st aay of March, A. D. [*494 privilege of other twelve months if de-1856, and that the costs of this suit, sired by them, at ten per cent. interest. which have not accrued, be paid out of That they executed their promissory said sum when collected." note for the whole amount of the pur-The garnishees filed a motion ask-chase money (the precise amount not ing a new trial or hearing, on the fol-remembered, payable to said James lowing ground : Dunnegan, Sr., or order, and delivered "That, at the time they filed their the same to him ; since which time answer to the interrogatories, &c., they they had no . knowledge where it was, did not know, and consequently did not who owned it, • or anything about it, state, whether the note they had given other than as stated above. That they to the judgment debtor, James Dunne-had paid nothing upon the note, owed gan, Sr., and which was mentioned in the whole of it to the owner, but it was said answer, had been transferred, or not due. whether the same was held or owned The following is the record entry of by him at the date of the service of the the submission of the cause, and judg-said garnishment or not. They state, ment of the court (18th September, ,1855). that since the rendition of said judg-"This cause was submitted to the ment against them, at the present term court (by the parties) upon the allega-of this court, they have been informed, tion and interrogatories of the plaint-and believe that said promissory note iff, and the answer of the defendants, was transferred by the said judgment and the evidence in the cause, and the debtor, who was the holder and owner court, after hearing all the evidence, of §aid note prior to the date of said and being sufficiently advised in the service of the writ of garnishment, and premises, found for the plaintiff, that that, in another trial, they could show
JAN. TERM, 1856. DUNNEGAN V. BYERS. the fact so to be. This discovery has It appears from the face of the rec-been made since the trial herein had." ord, that the debt was not due when The motion was sworn to, and filed the writ of garnishment was issued, on the next day after thejudgment was nor when the judgment was rendered, rendered. but the court stayed execution until it The court overruled the motion. became due. We say until the debt No bill of exceptions whatever was became due, because the legal presump-taken to any decision of the court, and tions are in favor of the finding and it does not appear what evidence was judgment of the court, the evidence introduced upon the trial of the cause, not appearing of record. otherwise than by the record entry of The appellee having put in no de-the submission and judgment above nial of the answer, the court, doubt-copied. less, treated it as true (Digest , chap. 78, Defendants appealed to this court. sec. 5), and the finding of the court was 1. It is assigned for error, that the not contradictory of the answer, as to court overruled the motion of appel-the maturity of the debt. lants for a new trial. The answer states that the appel-In ordinary suits at law, where a lants purchased the goods of Dunnegan motion for a new trial is overruled, and on twelve months credit, with interest, the party making the motion does not with the privilege of other twelve months except, he is presumed to have ac-if desired by them, with ten per cent. quiesced in the decision, and will not interest, and that they executed their be heard to question its correctness on note for the purchase money. But it error or appeal. Hopkins et al. v. L. B. is not stated iu the answer, that the C'. M. Dowd, 11 Ark. 627 ; Sawyers v. "privilege of other twelvemonths" credit Lathrop, 9 Ark. 67; Danley v. Bobbin's was inserted in the note, as one of the heirs, 3 Ark. 144. We know ofno good stipulations of the written evidence of reason why this rule should not apply in the contract: nor did the appellants, in 4951 gar*nishment cases ; but it does their answer, state that they desired not, the showing made by the appel-additional credit, or insisted upon it as lants was not sufficient to entitle them a right. We must presume, therefore, to a new trial. that the court ascertained from the evi-The writ of garnishment was exe-dence introduced upon the trial, that cuted on them 31st ofJuly, and the trial the agreement for additional credit was was had on the 18th September follow-not *inserted in the note, or V496 ing. They had over a month and a that it was waived by the appellants. half to ascertain whether their note Whether the court allowed the ap-had been transferred by Dunnegan or pellants three days of grace upon the not, and yet they do not g how that note, in staying execution until the 1st they had used any diligence to ascer-of March, 1856, we have no means of tain the fact. . They chose to answer at determining. The answer states that their peril. Cross v. Hakleman, 15 the goods were purchased on or about Ark. 203. The showing was deficient the 1st of March, 1855, on a credit of in other respects. See TVhite v. The twelve months, &c., and a note given State, 17 Ark. 404. for the purchase money. The court 2. The only other assignment of found upon the evidence that the debt errors is the general one, that the judg-was due on the 1st of March, 1856, and ment was in favor of the appellee, if the appellants were entitled to grace, when, by law, It should have been for we must presume the court gave it to appellants. them, as the contrary does not affirmatively appear.
DIINNEGAN V. BYERS. VOL. 17 The only question, really, which is Wentworth v. Whitmore, I Id. 471; Wil-legitimately presented upon the rec-lard v. Sheafe et al., 4 Id. 235; Wood v. 'ord, for our consideration is, whether Patridge, 11 Id. 488; Clark v. Brown et the appellants were subject to the pro-al., 14 Id. 271; Thorndike v. DeWolfe cess or garnishment until after the debt et al., 6 Pick. 120; Tucker v. Clisby et was due. al., 12 Id. 22; Stone v. Hodges et al., 14 In cases of attachment and garnish-Id. 81. ment, either before a justice of the In Childress v. Dickens et al., 8 Yer-peace or in the circuit court, the stat-ger Rep. 113, it was held, that by the utes contemplate that the garnishee statutes of Tennessee, a debt which was may be summoned before the debt is not due, could not be attached in the due, and provide for a stay of execu-hands of a garnishee. That the gar-tion until after its maturity,where it is nishee was only required to answer, not due when the judgment is rendered. what he was indebted at the time of Digest, chap. 16, secs. 16, 20; chap. 17, the summons. secs. 26, 37. But, by our statute, the garnishee is The statute providing for judicial required to answer as to his indebted-garnishments (Digest, chap. 78), is si-nes, &c., at the time of the service of lent on this point ; but it is equally as the writ, or at any time thereafter. broad and comprehensive as the stat-We think the statute is broad enough utes above referred to, as to what ef-to cover debts falling due after the is-fects of the principal debtor may be suance and service of the writ: and if reached in the hands of the garnishee. not due at the time the garnishee an-It provides that: "In all cases where swers, being, to some extent, in the any plaintiff may have obtained a nature of au equity proceeding ( Walker judgment, &c., and shall have reason v. Bradley, 2 Ark. 593), the court would to believe that any person is indebted have the power to continue the case to the defendant, or has in his hands, until the maturity of the debt, or ren-Ste., goods and chattels, moneys, credits der judgment with stay of execution. and effects belonging to such defend-There is no good reason, why a debt ant, such plaintiff may sue out a writ not due, should be subject to the proof garnishment," &c. Sec. 1. cess of attachment and garnishment, Again, "The plaintiff, &c., shall file and not to judicial garn ish men t. allegations and interrogatories, &c., The debtor has no cause of com-upon which he may be desirous of ob-plaint. It merely fixes a lien upon taining the answer of such garnishee, debt in his hands, in favor of the touching the goods and chattels, mo-plaintiff in the garnishment: he is al-neys, credits and effects of the said lowed the privilege of answering; the defendant, and the value thereof, benefit oflall just defenses; is not sub-497*]*in his hands and possession, at jected to costs, and not required to pay the time of the service of such writ, or the debt until it is due. A more rigid at any time thereafter." Sec. 3. and narrow coestruction of [*498 In Massachusetts, under a statute the statute would restrict its useful-not more comprehensive in its terms ness. The judgment is affirmed. than this, it is well settled that a debt, Absent, Mr. Justice Hanly. certainly payable at some future day, NOTE.—The lion. Thomas B. Hanly, Judge, was and notdependent upon a contingency, abseat during the remainder of the term. is subject to garnishment or trustee NOTE.—See Giles v. Hicks, 45-271 on Garnish-process, as it is called there. Dans et went; also Richter v. St. L. I. M. & s. Ry., 49-349. al. V. Ham et al., 3 Mass. Rep. 33;
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.