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Primrock v. Wilson

Supreme Court of Arizona

March 11, 1940

DAVID A. PRIMROCK, Doing Business as ARIZONA FURNITURE COMPANY, Appellant,
v.
DAVID E. WILSON, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.

Mr. E. H. Karz and Mr. Jacob Morgan, for Appellant.

Mr. Allan K. Perry, for Appellee.

OPINION

[55 Ariz. 193] LOCKWOOD, J.

This is an appeal by David A. Primrock, doing business as Arizona Furniture Company, hereinafter called garnisher, from a judgment in favor of David E. Wilson, hereinafter called garnishee. The record shows the following facts:

The garnisher brought suit against The Ohio Foundry & Manufacturing Company, a corporation, hereinafter called the company, and on March 30, 1939, filed his affidavit in garnishment alleging that the garnishee was indebted to the company and had effects in his hands belonging to it, including judgments, personal property, equipment and money.

A writ of garnishment was issued on March 30th, and served upon garnishee, who on April 3d made answer:

"... that he is not now and was not indebted to the defendant, The Ohio Foundry & Manufacturing Company, a corporation, in any sum whatsoever upon the date said writ

Page 181

was served; that he does not now have in his possession, and did not have when said writ was served upon him, any effects of the said defendant; [55 Ariz. 194] that he does not know of any other persons who have effects belonging to the said defendant or who are indebted to the said defendant, except that The Ohio Foundry & Manufacturing Company has a judgment in the sum of Eight Hundred Eighty-one and 1/100 Dollars ($881.01) against David A. Primrock and Alfred O. Primrock, bearing date of the 24th day of January, 1939."

Thereafter, and on April 5, 1939, the garnisher filed an amended affidavit on garnishment, which was served upon the garnishee on April 7th, to which a similar answer was made, except that all reference to the judgment mentioned in the first answer was omitted. The garnisher thereafter filed controverting answers to the answers of the garnishee, and on April 19th tendered issue upon them. The latter, answering the tender of issue, alleged that the tender did not state facts sufficient to constitute a tender of issue, and denied all the essential allegations of the tender except certain formal ones which we need not discuss.

At the trial on the tender three exhibits were offered in evidence, and one witness was sworn and testified. After considering the matter, the court entered judgment in favor of the garnishee, and this appeal was taken.

There are some seven assignments of error, the first two of which are clearly insufficient. The others, however, in substance allege that the evidence does not support the judgment, and we must, therefore, consider this question, and this alone.

It appears from the record that the judgment appealed from was rendered June 1, 1939. No motion for new trial was made nor was there ever any order or stipulation extending the time for the filing of the reporter's transcript of the evidence. This transcript ...


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