Allegheny Savings Bank v. Meyer , 59 Pa. 361 ( 1868 )

The opinion of the court was delivered, November 16th 1868, by

Williams, J.

The Allegheny Savings Bank, plaintiff in error, was summoned as garnishee of John Kerwin in an attachment execution issued on a judgment against him at the suit of Joseph Meyer & Bro., the defendants in error. The writ was executed May 27th 1867, and the hank having answered the interrogatories filed hy the plaintiffs in the attachment execution, the court below, on the Bd January 1868, ordered that judgment be entered against the bank for the sum of $1865.30, with interest from the 27th May 1867, to wit, $1921.58, to be levied of the debt due by the bank to John Kerwin. The entry of this judgment is assigned for error.

Were the plaintiffs in the attachment execution entitled to a judgment against the bank on its answer to their interrogatories?

The bank, if indebted to Kerwin, was not liable for interest on the amount of its indebtedness between the date of the service of the writ and the entry of the judgment. This point was expressly ruled in Irwin v. The Pittsburg & Connellsville Railroad Co., 7 Wright 488; and it was there held that a garnishee in an attachment execution is not liable for interest on the money in his hands due the defendant thereon, while the action is pending. So far, therefore, as the judgment in this case includes interest on the principal sum, for which it is entered, it is clearly erroneous. But this is not the main question raised by the assignment of error.

Was there such an admission of indebtedness to Kerwin by the bank as to warrant the entry of a judgment for the principal sum included therein ?

It is true that the account annexed to the answer shows that on the 27th of May 1867, the date of the service of the attachment execution, there was a balance against the bank in favor of Kerwin amounting to $1855.30. But this account must be taken in connection with the cashier’s answer. In his answer to the 3d interrogatory he says:

“There was a balance of $762.10 in his (Kerwin’s) favor on the 25th day of May 1867; and on the 27th day of'May 1867 he deposited money and checks of other persons, on different banks, amounting to $6421.20, and immediately drew a check in favor of A. Crane for $5328, which was paid; and which left a balance to his credit when the attachment was served of $1855.30.”

If the answer had stopped here the judgment, so far as it is for this balance, would have been clearly right. But the answer proceeds as follows:

“ In the deposit of $6421.20 was a cheek of Hugh Richardson, on the Union National Bank of Pittsburg, for $2500, payable to John Kerwin or bearer, which was protested for non-payment, and which remains in our possession unpaid to-day, which leaves John Kerwin indebted to this bank $644.70, until Richardson’s cheek is paid.”

Now, taking the whole answer together, and giving it a reasonable construction, does it admit or show an indebtedness by the bank to Kerwin of $1855.80, the principal sum for which judgment was entered ? On the contrary, does it not allege an indebtedness of Kerwin to the bank of $644.70 in consequence of the non-payment of Richardson’s check ? But it is contended that because Richardson’s check is credited in the account as cash, the presumption is that it was taken and received by the bank as cash. But is not this presumption met and rebutted by the answer ? If Richardson’s check was taken and received as cash, the fact that it was protested for non-payment and still remains in the possession of the bank unpaid, would not leave Kerwin indebted to the bank in the sum of $644.70, as alleged in the answer; and in this respect the answer would not be true. There may have been an agreement between the bank and Kerwin that all checks deposited by him and credited in his account as cash, if not paid on presentation, should be made good by him; or he may have endorsed Richardson’s check, and, in either event, its protest for non-payment on presentation, and its remaining in the possession of the bank unpaid at the date of the answer, would leave Kerwin indebted to the bank as stated by the cashier. As his answer was drawn up without the advice or assistance of counsel, he may have unwittingly omitted to state the facts upon which Kerwin’s liability for the check, and the bank’s right to set it off against the balance appearing in his favor, depend. If Richardson’s check was received absolutely as cash, without endorsement by Kerwin, and without any agreement on his part to make it good, if not paid on presentation, the cashier could hardly have supposed that its non-payment would render him liable therefor, and entitle the bank to charge him therewith. A garnishee’s answer is not to be construed with the same strictness as a defendant’s affidavit of defence. A defendant, under' our affidavit system, is bound to set forth every fact material and necessary to his defence; and every fact, not distinctly and positively averted, is presumed not to exist. The affidavit must show primá, facie that the defendant has a good defence to the action, otherwise judgment will be entered against him. But a garnishee is not bound to set forth “ specifically and at length the nature and character of his defence” to the attachment. He is only required to answer the interrogatories that may be submitted to him. And judgment will not be entered against him on his answer, unless he expressly or impliedly admits his indebtedness to, or his possession of, assets belonging to the judgment-debtor; and the admission ought to be of such a character as to leave no doubt in regard to its nature and extent.

We are of the opinion that the answer in this case does not contain such a clear and distinct admission of indebtedness by the bank to Kerwin as would warrant the entry of a judgment against it for the balance appearing in his favor on the face of the account, and the judgment of the court below must, therefore, be reversed.

Judgment reversed, and procedendo awarded.