149 F. 612 | U.S. Circuit Court for the District of Western Washington | 1906
The plaintiff having obtained a judgment for $6,000, and the same being unsatisfied, caused a writ of garnishment to be issued by the state court which rendered the judgment and served upon the Casualty Companj1, of America, a corporation, whereby said corporation was commanded to be and appear before the court within 20 days after the service of the writ, then and there to answer upon oath in what amount, if any, it was indebted to the Duwamish Mill Company, and what effects, if any, of said Duwamish Mill Company it had in its possession or under its control; the purpose being to colléct!from the casualty company an amount of money supposed to be due to the mill company, in order to apply the same in satisfaction of the plaintiff’s judgment against the mill company. This form of proceeding is authorized by the laws of the state. Laws Wash. 1893, p. 95, c. 56; Pierce’s Code, p. 107; Ballinger’s Ann. Codes & St. § 5390 et seq. The casualty company appeared in response to the writ of garnishment, and filed an answer denying any liability to the mill company on any account whatever, and at the same time filed a petition and bond for removal of the case into this court, on the ground of diversity of citizenship, and the plaintiff has moved to remand the case, alleging that this court is without jurisdiction. In order to determine the questions arising upon the motion to remand, it is necessary for the court to ascertain from the record whether there is a controversy in a civil action- wholly between citizens of different states, and with 'respect to these matters I find as follows:
Subsequent to the entering of the judgment, an-affidavit conforming 'to the requirements of the state law was filed in the state court,, alleging, in substance, that the casualty company was indebted to the mill
The plaintiff and the defendant in the original action are both citizens of the state of Washington, and the casualty company is a corporation organized and existing under the laws of the state of New York., I hold that the defendant in the original action is an indispensable party, but, to ascertain whether the necessary diversity of citizenship exists, the parties must be ranged on opposite sides of the controversy according to their respective interests; and, since the defendant will be benefited, rather than prejudiced, by having its liability to plaintiff discharged by the garnishee, and is deemed to occupy the position of a nominal plaintiff suing for the benefit of its creditor, the interest to be affected requires that both parties to the original action must be placed on one side of the controversy, leaving the garnishee in the place of sole party on the adverse side. In thus arranging the parties, I hold that pecuniary interests are to be considered, rather than any interest which the defendant may possibly have, based only upon mere sentiment, or a hostile inclination to obstruct the plaintiff in proceedings to obtain satisfaction of the judgment awarded to him.
The objection urged to the removal of the case into this court, on the ground that the proceéding is supplemental to the original action, which was not a removable case, does not call for extended discussion.' I concur in the reasoning and conclusions set forth in the following-paragraph from the opinion by Mr. Justice Daniel, in the case of Tunstall v. Worthington, Fed. Cas. No. 14,239:
“Tlie in-ocooding of garnishment as regulated by the statute of Arkansas, is anomalous, being partly legal and partly equitable. But it must be regarded as a civil suit, and not as process of execution to enforce a judgment already rendered. It may be used as a means to obtain satisfaction of a demand, in the same manner as a suit may be resorted to on a judgment of another state, with a view to coerce the payment of such judgment. In this proceeding the*614 parties have day in court, an issue of fact may be tried by a jury, evidence adduced, judgment rendered, costs adjudged, and execution issued on the judgment. It is in every respect a suit in which the primary object is to obtain judgment against the garnishee, and certainly cannot with any plausibility be treated as process of execution, or as part of the executiori process; for, if so, there could be no necessity or propriety in resorting to this forum to investigate the relations of debtor and creditor.”
Motion to remand denied.