Imágenes de páginas
PDF
EPUB

in his depositing it in a bank, or loaning it to an individual, which changes his ownership of it, or of the debt created by his deposit or loan? Any principal whose agent converts or deposits or loans his money can continue to look to the agent and compel repayment by him as a debtor; but he is not bound to do so when the person receiving it has knowledge of the relations of the principal and agent. Nor is there any thing in the fact that states or municipal corporations require bonds which increase the certainty that their agents will faithfully account, which should deprive them of the common-law right of private principals in similar transactions.

Again, we have, in this state, laws which are fully equivalent to the acts of Congress referred to so restricting the authority of federal depositaries, with the exception that deposits in banks are not expressly forbidden; for section 57 of the Penal Code makes it a felony for any officer to use any portion of the public money intrusted to him, in any manner or for any purpose not authorized by law, which is the same as a prohibition against using it except as authorized by law. Under the Nebraska case cited it 480 was held that a deposit of such funds in a bank would be a breach of the bond of the officer, and a violation of a penal statute similar to ours. This may be correct, but we do not believe it to be logical to say that for that reason the equitable owner of the fund should not have it, or that the debtor bank should be estopped to defend in garnishment by disclosing such owner.

The liability of the bank to the officer is a chose in action which, although the naked legal title to it is in him, really belongs to bis principal. Some complications may grow out of this doctrine, as they certainly must out of any other; but it is not a new doctrine at all, and it will operate as well in practice where a municipal corporation is the principal as where he is a private individual or corporation: See Mechem on Public Offices, sec. 922, and cases cited.

Although garnishment is a purely statutory proceeding, it is always administered upon equitable principles, and upon the answer of the bank and the proofs we hold it not to be liable for respondent's judgment against Parker.

Judgment reversed, and cause remanded, with instructions to dismiss the garnishment proceeding. The First National Bank of Fairhaven will recover costs against respondents, but not against the city of Fairhaven. The city of Fairhaven will not recover costs.

DUNBAR, C. J., and ANDERS, Scott, and Hoyt, JJ., concur.

GARNISHMENT OF TRUST FUNDS.-Funds in the hands of a trusteo in equity are not, as a general rule, liable to attachment until the share of the debtor has been ascertained by a statement of the trustee's trust, and the settlement of his final account: Groome v. Lewis, 23 Md. 137; 87 Am. Dec. 563, and note. Money held in a fiduciary capacity, but deposited by the holder to his general account in a bank, still belongs to the other party, and cannot be garnished or attached for the depositor's debt incurred before such deposit: Morrill v. Raymond, 28 Kan. 415; 42 Am. Rep. 167, and especially note. Funds in the hand of a trustee subject to the control of the court cannot be attached: Cockey v. Leister, 12 Md. 124; 71 Am. Dec. 588, and note. If a trust is valid, subsequent attachments will not affect the funds, and subsequent garnishee process could not, if applicable at all, gain any preference over the creditors who had precedent rights under the trusts Keppel v. Moore, 66 Mich. 292. See, further, the notes to the following cases: Lightner v. Steinagel, 85 Am. Dec. 295; and King v. Moore, 41 am. Dec. 44.

Olson V. VEAZIE.

(9 WASHINGTON, 481.) JUDGMENTS AGAINST PARTNERS— DESIGNATION OF PARTIES. —A judgment

describing the parties against whom it is rendered by their partner. ship name is valid, although in the action in which the judgment is rendered they are sued as individuals composing a partnership and as joint debtors, and designated by their individual names in the plead.

ings, including the caption to the judgment entry itself. JUDGMENTS - ACTIONS UPON. -A party who has recovered a joint judgment

upon a joint and several claim may thereafter inaintain an action

upon the judgment against either of the judgment debtors. JUDGMENTS OF Sister STATES - ACTIONS UPON-INTEREST.-In an action

upon a judgment rendered in another state interest may be recovered thereon, although the judgment sued on does not of itself purport to bear interest, and there is no proof of a statute of such state authorize ing the collection of interest on judgments rendered therein.. Stevens, Seymour & Sharpstein, for the appellant.

M. L. Clifford, for the respondent.

481 ANDERS, J. On October 13, 1884, the respondent, John Olson, commenced an action in the district court of the first judicial district. in and for the county of Washington, in the state of Minnesota, against the appellant, Orange Walker, and Samuel Judd, as partners doing business as Walker, Judd & Veazie, to recover the amount due on three promise sory notes made and delivered to respondent by said firm. On January 8, 1886, the following judgment was entered in that action: “It is hereby adjudged that the plaintiff herein recover of the defendants, Walker, Judd & Veazie, 482 the eum of three thousand three hundred and fifty-five and 1 dollars damages,” etc. This judgment was never paid, and, subsequent to its rendition, the appellant, one of the defendants therein, removed to Pierce county in this state, where this action was instituted against him to recover the amount thereof with interest. The case was tried by a jury, and there was a verdict and judgment in favor of the plaintiff for the sum of five thousand and thirty-eight dollars and fifty cents, and the defendant appealed.

The first error assigned by the appellant as a ground for reversal of the judgment appealed from is that the judgment of the Minnesota court, upon which this action was based, is void, for the reason that it was rendered against a firm, as an entity, and, so far as the record discloses, in the absence of any statute of that state authorizing such a judgment. It is true, as claimed by appellant, that, "in the absence of a statute, partners can neither sue nor be sued in the partnership name": 2 Bates on Partnership, secs. 1018, 1049, 1059. Butin this instance, the action was not waged against the defend, ants in the firm name. They were sued as individuals composing a partnership and as joint debtors, and were designated by their individual names in the pleadings and papers in the case, even including the caption to the judgment entry itself. Construing this judgment by the entire record, we think there can be no doubt that on its face it is a valid judgment against all of the individuals composing the firm of Walker, Judd, & Veazie.

In his valuable treatise on the Law of Judgments (sec. 50 a), Mr. Freeman says: “The name of the firm may be given, instead of the names of its individual members, or the parties may be designated generally as the plaintiff's or the defendants, provided a reference to the caption or to the pleadings, process, and proceedings in the action makes certain the names of the parties thus designated ”: See, also, 1 Black on Judgments, sec. 116; Bolling v. Speller, 483 96 Ala. 269; Hendry v. Crandall, 131 Ind. 42.

It is also urged on behalf of the appellant that if it be true that the action in the Minnesota court was an action against all the members of the tirm of Walker, Judd & Veazie, and

that the court in that action obtained jurisdiction of each of them, still this action cannot be maintained against this appellant, for the reason that the respondent, having recovered a joint judgment upon a joint and several claim, cannot now sue the parties separately. In other words, it is insisted that the original cause of action is merged in the judgment, and, having obtained a joint judgment, the respondent thereby exhausted his election, and cannot now recover in a separate action. But, be that as it may, it is evident that the question of merger is not a material one in this case, for this action is founded upon the judgment of the Minnesota court, and not upon the original cause of action set forth in the complaint filed in that court by the respondent.

Whether the appellant appeared or was served with process in the action which culminated in a judgment against him in the court of Minnesota are questions upon which there is a marked conflict in the testimony, and the verdict of the jury will not, therefore, be disturbed on the ground that it is contrary to the evidence.

In making up the amount of their verdict the jury allowed interest, at the legal rate, upon the judgment sued on. There was no proof of a statute of Minnesota authorizing the collection of interest on judgments rendered in that state, and the judgment itself by its terms did not purport to bear interest. And the appellant therefore contends that the verdict is ex- . cessive, and ought to be set aside and a new trial granted. This contention is supported by the supreme court of California (Cavender v. Guild, 4 Cal. 253) and perhaps some others, but, in our 484 opinion, the better reason and the greater weight of authority are in favor of a contrary doctrine. In cases like this interest should be allowed from considerations of justice, as damages for the detention of money due, and such is the well-established rule in several of the states: Barringer v. King, 5 Gray, 9-12; Hopkins v. Shepard, 129 Mass. 600; Sayre v. Austin, 3 Wend. 496; Mahurin v. Bickford, 6 N. H. 567; Stuart v. Hurt, 88 Va. 343; Shickle v. Watts, 94 Mo. 410; Wetherill v. Stillman, 65 Pa. St. 105; Ritchie v. Carpenter, 2 Wash. 512; 26 Am. St. Rep. 877.

We perceive no error in the record, and the judgment is, therefore, affirmed.

DUNBAR, C. J., and STILES, Scott, and Hoyt, JJ., concur.

JUDOMENTS OF Sister States- ALLOWANCE OF INTEREST ON.-Interest on a judgment of another state should not be allowed where there is no evidence showing that the cominon law of such state has been altered by statute: Thompson v. Monrow, 2 Cal. 99; 56 Am. Dec. 318, and note. A judgment of another state against principal and surety, properly assigned to the surety, bears interest in his favor as called for by such judgment: T'urner v. Johnson, 95 Mo. 431; 6 Am. St. Rep. 62.

FOR

COLE v. Satsop RAILROAD COMPANY.

19 WASHINGTON, 487.) CORPORATIONS_STOCKHOLDERS--LIABILITY ON STOCK SUBSCRIPTIONS.—The

fact that part of the stock of a corporation has been illegally subscribed by another corporation, all of the remaining subscribers for stock hav. ing taken with kaowledge of that fact, and having paid part of their subscription to enable the corporation to commence business, cannot be successfully asserted by them to escape liability on their stock subscrip.

tions in an action against them by the creditors of the corporation. CORPORATIONS -- STOCKHOLDERS - LIABILITY STOCK SUBSCRIPTIONS

MADE BY THEM THROUGH Trustees. -Under a complaint alleging that stock in a corporation has been subscribed for by a party as “trus. tee,” who, in making such subscriptions, has acted as agent for certain subscribers at their request, and for the benefit of each of them in proportion to his individual subscription, the creditors of the corporation may maintain an action against the real parties in interest to recover the amount of their subscriptions, and, without alleging fraud, may show by parol evidence that the subscription is in fact other than what

upon its face it appears to be. CORPORATIONS-INSOLVENCY_RIGHT OF RECEIVER TO SUE FOR STOCK SUB

SCRIPTIONS. ---A receiver for an insolvent corporation, appointed at the instance of its creditors, is clothed with all their rights, and may suo to recover stock subscriptions although the corporation could not main. tain such suit. Donworth & Howe, T. Carroll, and Dunning, Richards, Mure ray & Pratt, for the appellant.

Parsons, Corell & Parsons, for the respondente.

488 STILES, J. The complaint in this case, to which a demurrer was sustained, alleged:

1. The incorporation of the Pacific Mill Company under the laws of Washington, with a capital of $500,000, divided into 5,000 shares of the par value of $100 each.

2. The incorporation of the Satsop Railroad Company under the laws of Washington, with a capital of $100,000, and having by its articles of incorporation authority to subscribe for and acquire stock in other corporations.

« AnteriorContinuar »