115 So. 60 | La. | 1927
Plaintiffs brought suit by attachment against defendant, a nonresident, and made C.P. Ellis Co. garnishee. The garnishee answered that it had no funds in its hands belonging to defendant, and was not indebted to him in any sum whatsoever.
It admitted however that:
*1000"It carries on its books an account entitled Barrett Co., Inc., a/c E.P. Hoke, for the purchase and sale of cotton future contracts, which account at present stands with a ledger credit balance of $1,157.12. Said account was initiated by orders from, and upon the sole responsibility of, Barrett Co., Inc., of Augusta, Ga., and has always been handled and conducted wholly as the account of the said Barrett Co., Inc., from whom all sums due themselves have been received, and to whom all sums owing have been paid. Garnishee has never had any dealings whatsoever with the E.P. Hoke mentioned as defendant in the plaintiff's petition, and avers that the use of the name E.P. Hoke in connection with the account of Barrett Co., Inc., on garnishee's books was merely to assist said Barrett Co., Inc., in its bookkeeping, and in no way constituted any acknowledgment of indebtedness on the part of garnishee to any one other than said Barrett Co., Inc. Garnishee further avers that the aforementioned balance is due by it to said Barrett Co., Inc., and subject solely to their order."
But the trial judge thought that the answers of the garnishee did not amount to an admission of any debt to defendant E.P. Hoke, and dismissed the rule.
But, since the answers of the garnishee, as given above, are clearly not an unconditional and unqualified confession of indebtedness to the defendant, but, on the contrary, a distinct and unequivocal denial of any indebtedness whatever to defendant, it follows that the question here is whether it clearly appears none the less, from said answers, that the garnishee is liable to the defendant for $1,157.12, because said answers clearly and unmistakably show that the balance to the credit of the account entitled *1001 Barrett Co., Inc., a/c E.P. Hoke, is the property of said E.P. Hoke as the disclosed principal for whom Barrett Co. were acting.
And nothing hereinabove said conflicts with the well-settled principle that money or property which can be identified as belonging to one person may be recovered by him or reached by his creditors, even though found in the possession or standing in the name of another; for the question here is simply whether or not the answers of this garnishee do themselves clearly show that the balance in its hands belongs to defendant and not to Barrett Co.
But, in any event, the court seems to have missed entirely the point made by the garnishee that all further proceedings should be stayed until Carriere be made a party; whereas this court has, in Edward Thompson Co. v. Durand, supra,
"Where the evidence, upon the disclosure of a garnishee, shows that the debt sought to be garnisheed is payable to a third person, and not to the defendant in the principal action, the disclosure itself is sufficient to protect the garnishee, and it devolves upon the plaintiff to bring in such party if he desires to test the validity of his claim."
We think the trial judge did not err.