Imágenes de páginas
PDF
EPUB

City of New Bedford, 16 Gray, 297; Eastman v. that an intestate died in New Jersey, leaving a Meredith, 36 N. H. 284. In Burrill v. Augusta, life insurance policy, issued in New York by de78 Me. 118, 3 Atl. Rep. 177, it appeared that the fendant company, payable to his executors, adofficers of the fire department carelessly and neg ministrators and assigns, and not liable, under the ligently left a fire engine standing within the lim-law, for his debts. On the widow's renunciation its of a public street in the defendant city, and, and petition plaintiff was appointed administrator while so standing, drew the fire, and permitted in New Jersey, submitted proofs of loss to defendthe steam to escape with great noise, whereby ant company and demanded payment. Afterplaintiff's horse was frightened and ran away, wards the widow took out letters in New York and plaintiff was thrown to the ground and in and brought suit against defendant, and plaintiff, jured. It was held that she could not recover, on refusing to intervene, though notified, commenced the theory that these officers were performing a an independent action against defendant. It was public duty, acting on their own responsibility, held that, the New York court having first oband that they were not officers and agents of the tained jurisdiction, its judgment could be pleaded municipality, in such sense as that defendant was in bar to plaintiff's action. The court said in part: responsible for their acts. Dodge v. Granger (R. “The policy of insurance was a contract made I.), 24 Atl. Rep. 100, 15 L. R. A. 781, is another in the State of New York. The amount due on case directly in point. There the members of the this policy was at the time of the death of the defire department left a ladder truck standing so ceased an asset of his estate in the State of New that a ladder projected across the sidewalk in York. The letters of administration issued by the front of an engine house, in consequence of which surrogate in New York were duly issued. Whether a passer-by was injured. The city was held not they are considered as original letters of adminliable, because the members of the fire depart. istration, or administration ancillary to the priment were public officers, for whose acts the city mary administration in this State, is of no imwas not liable. It was also held that it was the portance. Having been issued by competent auduty of the fire department to take care of its ap thority in that State, the defendant could not paratus and keep it in proper condition for use, challenge the right of the New York administraand that in doing this work it was performing the trix to sue. The New York administratrix, with same duty as when actually engaged in extin respect to this cause of action in New York, was guishing fires. Liability of the city for unneces the legal representative of the deceased, and not sarily obstructing the street was conceded, but the administrator appointed in this State. The the case did not show any negligence in this re contention on the part of the company is that the spect. Wild v. Paterson, 47 N. J. Law, 406, 1 payment in satisfaction of this policy in New York Atl. Rep. 490, and Welsh v. Village of Rutland, is a complete bar to any subsequent suit in this 56 Vt. 228, also involved liability of the city for State. If the deceased had bis domicile in this the negligence of its officers and agents in keep State, any personal estate of which he died posing fire apparatus in good condition and repair; sessed would be distributed under the laws of this and in each case the city was held not liable for State; but, with respect to assets which were to injuries growing out of its negligence in this re be collected in another State, letters of adminisspect. Negligence of a fireman in opening a door tration granted by the courts of this State will be of an engine house so as to strike a passer-by on of no avail. To sue for and reduce into possession the sidewalk does not render the city liable. Kies assets in another jurisdiction, letters of adminisv. City of Erie, 135 Pa. St. 144, 19 Atl. Rep. 942. tration in that jurisdiction were necessary, alActs of a voluntary association of firemen are to though the assets, when collected, would be be regarded like those of paid firemen, in re transmitted to the administrator in this State, to spect to the liability of a city. Torbush,v. City be distributed under our laws. The New York of Norwich, 38 Conn. 225, 9 Am. Rep. 395. The courts had, unquestionably, jurisdiction of the following cases also add support to our conclu- suit that was brought against the defendant to resions: Smith v. City of Rochester, 76 N. Y. 507; cover this money, and the suit brought by the Thomas v. City of Findlay, 6 Ohio Cir. Ct. Rep. New York administrator was first in point of 241; Gillespie v. City of Lincoln (Neb.), 52 N. W. time. The subsequent suit by the administrator Rep. 811, 16 L. R. A. 349; Pettingell v. City of in this State was also in all respects regular. Chelsea (Mass.), 37 N. E. Rep. 380, 24 L. R. A. Process having been served on the defendant in 427. The Nebraska case is quite in point, and, this State, the court in wbich tbis suit was following the general tenor of the authorities, it brought had jurisdiction of this cause of action. holds that a city is not liable where the injury The court in New York and the court in New Jercomplained of is due to the negligence of the sey having each jurisdiction over the same cause driver of a ladder truck while exercising a team of action, these proceedings are subject to the of horses belonging to the fire department of the well-settled rule in judicial proceedings, that, city."

where there is a jurisdiction in two courts,

whether they be courts of the same State or courts JUDGMENT-RES JUDICATA.--In Traflet v. Em of different States, the jurisdiction of the court pire Life Ins. Co., 46 Atl. Rep. 204, decided by which is first in time will prevail. The pendency the Supreme Court of New Jersey, it appeared of a suit in a foreign State cannot be pleaded in

abatement to a subsequent suit for the same cause HAS THE GARNISHING CREDITOR A of action in a court of this State, the remedy be

SPECIFIC LIEN? ing by an application for a stay. Kerr v. Willetts, 48 N. J. Law, 78, 2 Atl. Rep. 782. But, when the

One who merely reads what has been writsuit in another State bas proceeded to final judg

ten on this topic might suppose that no legal ment, the judgment may be pleaded in bar. Barnes v. Gibbs, 31 N. J. Law, 317, is directly in

question could be more involved in conflict point. The plaintiffs in that case on the 12th of and inconsistent decisions. Judges and textJuly, 1864, brought suit against the defendant in writers make statements diametrically opthe Supreme Court of New York to collect certain posed to each other, and defend them with a moneys alleged to be due them. After the com

zeal which demonstrates the strength of their mencement of the suit in New York, namely, on the 20th of October, 1864, the plaintiffs brought

convictions. But every argument they make suit against the defendant for the same debt in the and every case they cite or decide, shows the circuit court of the county of Essex. Judgment natural limitations of the propositions which was entered in the New York suit in favor of they assert in round unqualified terms. When the plaintiffs on the 24th of January, 1865.

the decided cases are critically examined to The defendants plea led in bar to the suit

ascertain the questions presented for decis. in this State the judgment recovered in New York, and that plea was sustained by this ion, and we consider the answers given to court. The situation of the parties in the case questions, the mists begin to dissolve and the just cited is in all material respects the same as decisions are seen to be in harmony. In his the situation in the present case, and controlled work on Attachment, Judge Drake says: by that precedent conclusive effect must be given

“Garnishment is an effectual attachment of to the judgment in New York as a merger of the cause of action which is common to both suits.

the effects of the defendant in the garnishee's The decisions of the courts of New York are to hands, differing in no essential respect from the same effect. In Sulz v. Association, 145 N. attachment by levy, except, as is said, that Y. 563, 40 N. E. Rep. 242, 28 L. R. A. 379, it was the plaintiff does not acquire a clear and full held that a suit pending by a foreign administra

lien upon the specific property in the gartor who has first duly commenced an action upon a policy of insurance upon the life of the deceased

nisbee's possession, but only such a lien as by service of process as prescribed by the laws of gives him the right to hold the garnishee perthis State, is a bar to the second action upon the sonally liable for it or its value.''(The italpolicy in the courts of New York. It appears ics are mine.) Judge Drake was too careful that, by the practice in New York, proceedings

a writer not to see the difference between by the way of interpleader may be had to settle the rights of conflicting claimants to the same

dictum and decision. He does not entirely fund. Before the administrator in this State

indorse the statement. Judge Wade is les could have assumed the status of a claimant, it guarded in his statements on this point. He would have been necessary that he should have says: “It differs from attachment in two obtained capacity to sue in that court. The de- important particulars: (1) Its validity does fendant, pending the New York suit, notified the administrator in this State of the fact before judg

not depend on ihe officer's taking possession; ment in that court. Having done this, the de. (2) it creates no specific lien upon the defendant did all that was necessary. The conflict fendant's property in favor of the plaintiff ; between the administration in this State and the

instead of the specific lien the liaadministration in New York, owing to the conduct of the widow in inducing the administrator bility of the garnishee is substituted." These here to take out letters, and afterward taking out propositions are asserted and defended in letters herself in New York, cannot be permitted

such cases as McGarry v. Lewis Coal Co.,' in to prejudice or affect the interests of the defend which a garnishing creditor brought a suit ant. If the administration in New York can be for conversion against an innocent purchaser regarded as ancillary to the prior administration

for value of the steam tug in the garnishee's in this State, and the money in question is re

hands at the time the garnishment was served. quired to be distributed under the laws of this State, the remedy of the administrator in this

It was very properly held that, buying from State is to resort to the courts of New York." the principal debtor who owned the tug, and

at the same time receiving possession with-
out any notice of the garnishment or objec-
tion from the garnishee, the purchaser ac-

1 Drake on Attachment, $ 453.
2 Wade on Attachment and Garnishment, $ 325.
3 98 Mo. 237, 6 S. W. Rep. 81, 3 Am. St. Rep. 522.

quired title against the prior garnishing missing a petition in the nature of a bill in creditor, whose only recourse now was against equity, filed by the garnishing creditor, askthe garnishee for the value of the property | ing tbat a receiver be appointed to take posthus wrongfully released. How a different session of the property in the possession of conclusion could have been reached in such a the garnishee. But in these cases it is inti. case is hard to conceive. If one should mated that the relief would have been given purchase property under similar circumstance if the complainants had alleged that the garfrom an execution or attachment debtor after nishee was insolvent and was disposing of the a levy and release by the sheriff and then property, which looks very much like a recogshould be sued in trover by the execution or nition of a specific lien. A garnishee surattachment creditor, the result must be the rendered goods in his possession to a person same. I have searched the books diligently who had a mortgage on them, with right of many times during the past year for a case possession when the garnishment was served ; presenting this question, and as yet have been but while he retained them the principal deunable to find any; but dicta are common to fendant gave a second mortgage on them. the effect that the execution creditor's re Later, the garnishing creditor filed a petition course is only against the sheriff for the in the nature of a bill in equity, making all wrongful release. Another case much re interested persons parties, and asking that lied upon is Walcott v. Keith. In this case the proceeds of the property after payment one who had received goods in pledge with of the first mortgage be applied on his judgpower of sale and application of the proceeds ment. The court gave the surplus to the to secure him as indorser of the note of the second mortgagee, because under the law in owner, brought trover against one of the own that State at that time a mortgagor has no er's creditors on whose attachment the goods interest in the property liable to process,

cithad been taken from the possession of the ing a case in which mortgaged property was pledgee, and who had on demand refused to levied on and a second mortgage given by the order the release of them. The principal de mortgagor while the property was in the posfenses were (1) that there was not sufficient session of the sheriff, and adding: "It was proof of demand before suit brought, and there held that the levy of the writs created therefore no proof of conversion; and (2)° no lien. In this case if the garnishees had that plaintiff's special property was not suffi surrendered the property to the officer who cient to enable him to maintain the action. served the writ, the latter could have acquired Both of these contentions were decided against no lien under the rule of the case last cited. the defendant; and, in deciding the second Under other decisions of this court no lien on one , although no point appears to have been property of this kind can be acquired by made of the fact by counsel in their brief, the court said that no objection to maintain

5 McConnell v. Denham, 72 Iowa, 494, 34 N. W. Rep. ing the action existed by reason of the fact 298; Silverman v. Kuhn, 53 Iowa, 436, 5 N. W. Rep. that, before the attachment was levied and be

523. Land being attached in an action against the

legal owner's grantor, and the legal owner and his fore plaintiff received the goods in pledge, the

tenants being summoned as garnishees, a petition was person from whom he had received them had filed alleging that the garnishees were insolvent, and been summoned as garnishee of the attach asking that a receiver be appointed to rent the land

and collect the rents till the cause and rights of the ment debtor at the suit of another creditor.

parties could be adjudicated. The petition was de. The court goes on to say that the garnishing nied on the ground that it sought the benefits of a creditor acquired no lien by his process, and

creditors' bill. "It is the general rule that such a bill the garnishee had waived his right by volun

cannot be maintained until judgment has been ob

tained in the principal action.” The statement is also tary release of the property to the plain tiff. made that no lien is acquired by the garnishment. All this is aside from the case before the Clark v. Raymond, 84 Iowa, 251, 50 N. W. Rep. 1068,

86 Iowa, 661, 53 N. W. Rep. 354. court, and entirely unnecessary to the decis

. An insurance company and the assignee of the ion reached, as must clearly appear to the policy being garnished after loss, the assignee gave merest tyro in judicial discussions.

orders on the fund, and the court held that she was a

proper person to summon as garnishee, but had no That the garnishing creditor acquires no

power by such orders to dispose of the fund and com. specific lien has also been asserted in dis- pel the creditors to take a merely personal judgment

against her, for which reason the fund paid into court 4 22 N. H. (2 Foster) 196.

by the insurance company was awarded to the gar.

[ocr errors]

process of garnishment."7 In a later case in nishee therefor on a judgment in favor of the same court, the mortgagee in possession another creditor, and the sheriff asked the being the garnishee, the sheriff took the court to determine who was entitled to the property from the garnishee on an attach- proceeds. The decision in favor of the levyment, depositing the amount of the mort- ing creditors was affirmed, the court saying: gage. The court held the garnishee to have "The service of a copy of execution and a lien over and above his mortgage to the notice of garnishment upon a third party amount of the garnishing creditors' demand, constitutes no lien on property of the debtor and denied the attaching .creditors' petition in his hands capable of manual delivery. It for foreclosure of the mortgage for their is clear, therefore, that plaintiff was entitled benefit.

to recover from the sheriff so much of the A creditor summoned the secretary of a proceeds of the sale as was sufficient to corporation as garnishee, intending thereby satisfy his judgment.” That my italics show to attach stock of the corporation belonging the reason for the decision is demonstrated to the debtor. Judgment for the plaintiff by a later decision by the same court, in which was reversed, on appeal by an intervening judgment for defendant was affirmed in an claimant, because the statute provided that action by mortgagees of a growing crop corporate shares might be attached by de-against a sheriff for seizing the matured crop, livering a copy of the writ to the secretary under execution on a judgment in an action and informing him of the levy, etc. “This by attachment, in which the sheriff had served mode has not been adopted in the present the attachment by giving a copy of it to the case.” The court, therefore, declared the attachment defendant, who was in possession. proceeding void, but volunteered to add that He executed the mortgage later. The attach"whenever the attachment by garnishment ment in this manner was sustained because is proper and is adopted no lien on property the property was, within the meaning of the is thereby obtained."9 One of the most de code, "other personal property not capable of tailed statements of the doctrine that the manual delivery.“Personal property not garnishing creditor acquires no lien is found capable of manual delivery which is in the in Citizen's State Bank v. Council Bluffs Fuel hands of the defendant to the attachment is Co.,' in which the principal question was as much liable to attachment as if in the hands whether the bona fides of a transfer could be of a third person.”]2 tested by garnishing the assignee; and a ver The garnishing creditor cannot recover in dict against the garnishee on the ground that an action against one to whom the garnishee the assignment was fraudulent was sustained. has paid money for the defendant's benefit

Another case frequently cited to the same after the garnishment was served, for the deeffect is Johnson v. Gorbam," in which the fendant owns nothing specific in the garproceeds of property levied on under execu nishee's hands, and the payment does not tion were awarded in an action against the render the garnishee any less a debtor, so far sheriff for refusal to apply the proceeds of as the garnishing creditor is concerned ; 13 and the property to the satisfaction of the execu for the same reason a court of equity will not tion. The sheriff defended on the ground enjoin the garnishee from making the paythat he found the goods in the hands of a ment.14 These cases are also cited to the custodian who had been summoned as gar effect that the garnishing creditor acquires no

specific lien. This deduction is so unwarpisbing creditor to the exclusion of the claimant to ranted that no answer is necessary. whom the orders were given, the assignment being fraudulent. Shaver Wagon & Carriage Co. v. Halsted,

Thus we have nearly completed the long 78 Iowa, 730, 43 N. W. Rep. 623.

list of cases cited to the effect that the gar* Booth v. Gish, 75 Iowa, 451, 39 N. W. Rep. 701. nishing creditor's lien is not specific, and This case is frequently cited to support the claim that the garnishing creditor acquires no specific lien, but the decision was merely that defendant had no inter. 12 Raventas v. Green, 57 Cal. 254. est liable to process.

13 Hulley v. Chedic, 22 Nev. 127, 58 Am. St. 729, 36 8 Buck-Reiner Co. v. Beatty, 82 Iowa, 352, 48 N. W. Pac. Rep. 783. See also Corey v. Webber, 96 Mich. Rep. 96.

357, 55 N. W. Rep. 982; Funkhouser v. How, 24 Mo. 9 Mooar v. Walker, 46 Iowa, 161.

44; Haynes v. Gates, 39 Tenn. (2 Head) 598. 10 89 Iowa, 618, 67 N. W. Rep. 444.

14 Pelley v. Dunlap Hardware Co., 99 Ga. 300, 25 S. 11 6 Cal. 195, 65 Am. Dec. 501.

E. Rep. 697.

[ocr errors]

have found them invariably without bearing in disobedience of the garnishment summons on the question. But there are a few cases has been treated and punished as contempt of which give color to the doctrine and cannot the court's process, though no other order be thus brushed aside with a wave of the had been made.22 The garnishing creditor, hand. Bills filed by garnishing creditors to who has recovered judgment against the garset aside conveyances of property in the nishee, may also quit his pursuit of the garhands of the garnishee as in fraud of credit nishee, and maintain an action in his own ors have been dismissed on the ground that name for conversion against anyone, other the creditor has made no levy; and, there than a purchaser for value without notice, fore, has no interest in or lien on the property who may have obtained the property and conto enable him to attack the transfer.15 These verted it to its own use.23 He may also decisions might have been based on the cred have a sale by a later levying creditor itor's adequate remedy in the garnishment enjoined.24 If this be a less lien than proceedings; for the fraudulent transfer is is acquired by a levy of an execution void at law as well as in equity, and, in the or attachment I fail to see wherein and garnishment proceeding, the creditors may should be pleased to be informed. So much annul the covinous title.16 But the decisions space having been given to explaining dicta were not put on that ground. One more de- indicating that the garnishing creditor accision and the list is completed, and this quires no lien, no time will be taken to reseems to me the only unjustifiable decision view 1 bose announcing a different rule; but in the whole category. In Bigelow v. An. this article cannot be better elosed than by dress?? the garnishing creditor filed a bill in quoting a dictum which has the advantage of chancery setting forth that the garnishee was being sound law, and from a very respectable disposing of the goods attached in his hands, authority-Chief Justice Shaw of Massachuand praying that he be enjoined from dispos setts: "The trustee process, 25 provided for ing of them, and that a receiver be appointed by statute, manifestly contemplates two disto take charge of the property. The bill was tinct classes of cases, in which a creditor may dismissed on demurrer on the ground that the avail himself of its provisions to secure his garnishing creditor had no claim on or inter debt, by attaching property in the hands of a est in the goods, but only the right to hold third person; the one, when the trustee has the garnishee personally liable for their value. in his custody, or under his control, goods or The decision is indefensible from any point | chattels, liable by law to be attached on of view and stands entirely alone.18 It has mesne process, by the ordinary writ of atusually been held that the garnishee may be tachment; the other, where the trustee is a enjoined from disposing of the property, and debtor to the principal defendant, and owes obedience enforced by proceedings for con him money, either due and payable presently, tempt ;19 enjoined from taking it out of the or existing as a debt at the time of the attachState and ordered to pay it into court;20 a re ment, though payable at a future day. Maine ceiver appointed to take charge of it if he F. & M. Ins. Co. v. Weeks, 7 Mass. 438; abandons it;21 and disposition of the property Swett v. Brown, 5 Pick. 178. This distinc

tion is founded on the statute rendering 15 Wilson v. Harris (Hunt, J., dissenting), 21 Mont.

goods and credits, respectively, liable to at. 374, 54 Pac. Rep. 46; Childs v. Carlstein Co., 76 Fed. tachment. In the former case the attachRep. 86; Maish v. Bird, 48 Fed. Rep. 607.

ment binds the goods specifically, creates a 16 Custer v. Steever, 36 N. J. Law, 301; Kelley v.

lien upon them, of the same nature and to Andrews, 94 Iowa, 481, 62 N. W. Rep. 853; Lockland v. Garasche, 56 Mo. 267.

the same extent, as an ordinary attachment 17 31 III, 322.

on mesne process, although the goods are to 18 In Iowa such an injunction was dissolved on proof tha: the garnishee was amply solvent. Sueet y. 22 Lilienthal v. Wallach, 37 Fed. Rep. 241. But see Oliver, 66 Iowa, 741, 10 N. W. Rep. 275.

Maxwell v. Bank of New Richmond, 101 Wis. 286, 77 19 Mally v. Altman, 14 Wis. 22; Almy v. Platt, 16

N. W. Rep. 149. Wis. 169; Bragg v. Gaynor, 85 Wis. 463, 55 N. W. Rep. 23 Focke v. Blum, 82 Tex. 436, 17 S. W. Rep. 770; 919.

Rockwood v. Varnum, 36 Mass. (17 Pick ) 289; Reed 20 Jobann v. Rufener, 32 Wis. 195; Germania Savings

v. Fletcher, 24 Neb. 435, 39 N. W. Rep. 437. Bank v. Peuser, 40 La. Ann. 796, 5 South. Rep. 75. 24 Erskine v. Staley, 38 Va. 12 Leigh. 406.

21 Northfield Knife Co. v. Sharpleigh, 21 Neb. 635, 25 This is the name for garnishment in Massachu. 39 N. W. Rep. 788.

setts.

« AnteriorContinuar »