Palmer v. Gilmore
Palmer v. Gilmore
Opinion of the Court
Opinion by
The judgment note from Gilmore to Rogers imported a debt due, and would have made a prima facie case for this plaintiff against the garnishee, had it not been neutralized by the verdict upon it for defendant in the suit in C. P. No. 2. But if the jury should be satisfied that that verdict was collusive and fraudulent against this present plaintiff as an attaching cred
The first point to be considered therefore is, whether the plaintiff presented sufficient evidence to go to the jury on the collusive and fraudulent character of the verdict in G. P. No. 2, and we are of the opinion that she did. The variations, not to call them discrepancies, between the testimony of Gilmore on the stand, and his previous affidavits in the suits of Rogers v. Gilmore and Knight v. Rogers, the peculiar circumstances of the trial in G. P. No. 2, the attachments furnishing a motive for a collusive arrangement between Rogers and Gilmore, the payment to Knight the only attaching creditor who stood in the immediate way of an arrangement, and the testimony of Gallagher which if believed pointed clearly to the existence of such arrangement, made out a case which if uncontradicted or unexplained would justify the jury in finding that there was collusion and fraud. ■ It may all be susceptible of clear and satisfactory explanation, and, if so, the verdict in G. P. No. 2 will be conclusive even against the present plaintiff that there is nothing due from Gilmore to Rogers on the note in question. But such explanation is for the jury.
Ground having been laid for the claim of fraudulent combination between Rogers and Gilmore, the declarations of either, in reference to the debt, become competent evidence: Lowe v. Dalrymple, 117 Pa. 564.
Judgment reversed, and venire de novo awarded.
Reference
- Full Case Name
- Palmer v. Gilmore, Garnishee
- Cited By
- 3 cases
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- Published
- Syllabus
- Foreign attachment — Collateral impeachment of judgment for fraud. Plaintiff having issued a foreign attachment in C. P. No. 1, of Philadelphia, against a debt represented by a judgment in C. P. No 2, the defendant in C. P. No. 2 (garnishee in C. P. No. 1) took a rule to open the judgment, which was resisted by an attaching creditor of plaintiff therein. The claim of this attaching creditor having been paid and his opposition withdrawn, the judgment was opened, the case tried before a jury and a verdict rendered for defendant. The defendant then, as garnishee in C. P. No. 1, pleaded nulla bona. The case was then tried, the issue being the determination of whether or not the trial in C. P. No. 2 was collusive and fraudulent and the verdict obtained by a combination between plaintiff and defendant. It was Eeld: 1. Thatthe judgmentnoteenteredinC. P. No. 2 would have made a prima facie case for this plaintiff against the garnishee had it not been neutralized by the verdict upon it for defendant. 2. If the jury in the present case should be satisfied that that verdict was collusive and fraudulent against the present plaintiff as an attaching creditor, then the verdict would be a nullity as to her, and this case would stand as it stood on the opened judgment in C. P. No. 2, to wit, a prima facie case for the plaintiff made out by the note, and the burden on the defendant to show that there was nothing really due. Fraud and collusion — Evidence—Question for jury. Where a judgment has been attached by a suit in foreign attachment, and subsequently the judgment is opened, an attaching creditor who opposed this action being paid the amount of his claim, and a verdict and judgment is obtained for the defendant, there being, besides, direct testimony that this was in pursuance of a fraudulent agreement between plaintiff and defendant, a case is made out which, if uncontradicted or unexplained, would justify the jury in finding that there was collusion and fraud. The circumstances may be susceptible of clear and satisfactory explanation, but such explanation is for the jury. Conspiracy — Fraud—Evidence. Ground haying been laid for the claim of fraudulent combination between two parties, the declarations of either in reference to the subject-matter of the combination become competent evidence. Lowe v. Dalrymplo, 117 Pa. 564, followed.