#### Noah L. Bolton, v. D. S. Bailey, Appellant.

Garnishment: liability or garnishee: how determimed. Where a son was garnished on a judgment against the father and answered that prior to the judgment the father gave him certain notes, hut there was no evidence to show that the father at that time was insolvent and no issue was joined on the garnishee’s answer, his liability should have been determined on his answer as given, and evidence as to the father’s insolvency given in a former proceeding to which the son was ' not a party should not have been considered.

*Appeal from Linn District Court.*— HoN. H. M. Reihley, Judge.

Thursday, February 11, 1904.

Upon rebearing former opinion reported in 98 N. W. Rep. 596 is withdrawn.

The appellant is tbe garnishee of tbe principal defendant, S. C. Bailey, against whom tbe plaintiff obtained a judgment in 1900. Tbe appellant answered as such garnishee, and, upon bis answer alone, judgment was rendered against him for tbe amount claimed by tbe plaintiff. He appeals.

*■*— Reversed.

*F. L. -Anderson*for appellant.

*Giffen & Voñs*for appellee.

SiierwiN, J.

Tbe appellant is tbe soel of S. C. Bailey, and his answer as garnishee showed tbat in 1896 bis father assigned and transferred to him, as a gift, certain notes, aggregating in amount more than tbe judgment rendered against him as garnishee. There wasjnothing in tbe appellant’s answer tending even remotely to show tbat at tbe time *730of tbe transfer of the notes to him his father was insolvent, or without sufficient property remaining in his hands to pay all of his just debts. Before the garnishment proceedings, however, the father had testified in a proceeding supplemental to execution, to which the appellant was not a party, that he had been insolvent for many years, the time of such insolvency involving the time of the transfer of the notes to the appellant; and the appellee contends that the court properly considered this evidence, in addition to the answer of the garnishee, in determining the latter’s liability. This proposition, however, we cannot assent to. The appellee tendered no issue on the answer of the garnishee, and it was therefore to be considered as the sole and only test of his liability. *Kerr v. Edgington,*106 Iowa, 69. And if, from such answer alone, there was doubt as to his liability, ne was entitled to a judgment in his favor. *Morse v.*Marshall, 22 Iowa, 292; *Church v. Simpson,*25 Iowa, 408. It is clearly apparent, then, that he was not bound by the testimony given by his father upon the supplemental hearing, and that the court could not consider such testimony in determining his liability under his answer. Whether the facts disclosed in the answer of a garnishee show that he holds property of the principal debtor to which the creditor is entitled is a question of law arising from the answer alone, and not one of fact created by the consideration of evidence dehors the record. *Sheppard & Co. v. Downing,*14 Iowa, 597. The appellant’s answer went no further than to show that the transfer of the notes to him was a gift, and, while a gift may not be sustained to the detriment of the donor’s creditors, it is nevertheless true that it is valid, and will be upheld if the donor retains property sufficient to pay his debts. *Pierson v. Heisey,*19 Iowa, 114; 14 Amer. & Eng. Enc. of Law (2d Ed.) 1048. The law raises no presumption that the donor was indebted at the time of the gift, nor does it rame any presumption that he was then insolvent, in the absence of any showing that he then had creditors. It was therefore incumbent upon the plaintiff flb present such an issue, if he desired to *731rely upon *it;*and if lie bad done so, and proven that *the*donor was indebted at that time, it might then have devolved upon tbe appellant to prove tbat bis father bad sufficient property, independent of tbe notes, to satisfy all creditors. *Strong v. Lawrence,*58 Iowa, 55.

As the answer of tbe appellant did not show any indebtedness on tbe part of bis father at tbe time of tbe gift to him, nor tbat be was then insolvent,tbe trial court was clearly wrong in rendering judgment against tbe appellant on such answer, and tbe judgment is reversed.