Berry v. Matthews

Le Grand, C. J., delivered the opinion of this court. This is the case of an attachment levied on land, credits and com. The garnishees admitted, in one case, the indebtedness, and in another, the possession, of a certain quantity of com, the property of the defendants. There is no question, whatever, as to the correctness of the claim of the plaintiff, the present'appellant.

By an agreement filed in the cause it appears, ⁵⁵⁸ that separate cases were docketed against the several garnishees, which have b§en stetted to abide the decision in this one. Independently of this agreement, the cases would necessarily be separate, and distinct judgments pronounced in each. The rule, in this regard, is stated with correctness by Mr. Evans, at pages 98, 99 of his work on Practice. He says: where “the attachment has been laid in the hands of several garnishees, severally, that is, unconnectediy, or of some jointly and of other separately from them, and either jointly or severally, among themselves, the proceedings are somewhat different.

Each several garnishee, and each set of joint garnishees, must then appear severally, even although they may all employ the same attorney. The clerk then dockets as many suits as there are separate appearances, and each of these is regarded as a separate cause, and goes on without any reference to the other, than is necessary to secure the defendant against the risk of the plaintiff’s getting more than one satisfaction for his debt.” This being so, the present appeal is confined to the validity of the attachment levied on the land, and this depends entirely upon the solution of the question, whether the deed of the 5th of October 1857, offered in evidence, and the other testimony objected to, but admitted by the court, be sufficient to show .title in the claimants so as to defeat the plaintiff’s right to condemnation. It has riot been pretended that the deed, in terms, covered the particular land levied upon, but, it was insisted, that the description in the deed was of a character to create such an ambiguity as would authorize the introduction of other evidence to explain its true application. We are clearly of opinion, that the deed does not present any ambiguity, either patent or latent.

It gives the devolution of the title and describes the property with clearness, and neither the one nor the other corresponds with the land levied upon, which is conceded to have been that of the defendants. The evidence adduced to show the identity of the land conveyed, with that levied upon, in no-sufficient way connects itself with the description in the deed, to overrule and set it aside. Although, it was said, that if the deed of the 5th of October 1857, did not cover the land in question, and for that reason was inadmissible, yet ⁵⁵⁹ that If any part of the evidence was admissible, it would have been error in the court to have rejected the whole, and that as the assignment of the personalty of the assignors was admissible to change the title to it, the court did right, in overruling the objection. ít is undoubtedly true, that if testimony be' offered generally, and it be objected to in entirety, and any pari of it be admissible, it is error to reject the whole. The cases of Budd vs. Brooke, 3 Gill, 220 , Pegg, et al., vs. Warford, 7