3 Minn. 389 | Minn. | 1859
By the CAwY
The Appellant in September last, obtained a judgment in the District Court for Ramsey County, against the Minneapolis and Cedar Yalley Rail Road Company, for the sum of $2781,90. During the pendency of
“At a regular meeting of the Board of Directors of the Minneapolis and Cedar Valley Bail Boad Company, the following resolution in relation to the b onds was adopted:
Resolved, That the one hundred State Bail Boad Bonds, now ready for delivery to the Company by the Grovernor, and twenty-five bonds still accruing to the Company for grading already performed, be and they are hereby delivered into the possession of Henry H. Sibley, as Trustee, for the protection of the creditors -of the Company, so far as they can be applied to that object. Said Trustee being hereby authorized and empowered to pay them out to such creditors of the Company as will receive them in a pro-rata proportion at the rate of ninety-five cents on the dollar, and upon ascertaining the balance to the several creditors who will receive bonds, after the payment shall be made, said Trustee is further empowered and authorized to draw drafts upon the President of the Company, for such balance, upon the delivery to the said Trustee of the evidence of indebtedness held by such creditors, and all drafts of the Trustee in favor of any creditor or creditors of the Company, are hereby declared to be legal and conclusive evidence of indebtedness of the Company to the amount of such draft or drafts. It being understood that the contractors for grading are not to be affected by the above provisions, but are to be paid according to the terms of their several contracts; and exempting from the operation of this resolution, also the one bond agreed to be paid Chas. A. Wheaton for services, and oneabond to W. P. Causine, Land Agent for the Company in Washington, in full for services rendered by him, which bonds are to be deducted from the above number 125. It being further understood, that the security herein contemplated, shall not extend to the claims of the Directors of the Company for services rendered by them. Provided, that in case any of the said bonds shall remain in the hands
Another resolution directed the Chief Engineer to furnish the said Trustee a list of the liabilities of the Company, for his guidance in settling with creditors. These resolutions were passed July 21, 1859.
The garnishee further stated that “before the schedule of the Chief Engineer referred to in the resolution, was delivered to me, the Board of Directors paid over to A. B. Morrell, ten of the State Bonds mentioned in the resolution, numbered 503 to 512 inclusive, on an indebtedness due him by the Company, and which does not appear in the schedule of the Chief Engineer. Deducting the two bonds mentioned in the resolution, and the ten bonds to Morrell, there remained in my hands eighty-eiglit bonds of the hundred mentioned in the resolution, which were placed in my hands on the 22d or 23d of July, 1859.”
The disclosure goes on to state that certain creditors had accepted and received bonds on the terms proposed in the resolution, “leaving a balance of fiftj-three bonds of one thousand dollars each, belonging to the Defendant, in my hands. ”
The first question presented for consideration under this disclosure 'is, what was the nature of the power conferred upon the garnishee by the resolution above quoted; and in what relation does he stand to the Bail Boad Company ? He has been treated in the argument as an assignee for the benefit of creditors, and the resolution, it is claimed, is an assignment of the property in question. Upon an examination of the wording of the resolution, and the action of the Company under, or rather, notwithstanding it, we think such a view cannot be sustained. One of the primary and most necessary elements of an assignment, is the disposal or transfer of the
But if it be an assignment, it is clearly void as against creditors. To say nothing of the fact, that at most it only purports to be a partial assignment, and made for the benefit of a part of the creditors of the Railroad Company, it contains provisions which are contrary to the principles of justice and equity, and the well settled rules of law on this subject. The Company have assumed the right to dictate to their creditors the terms upon which they are to receive any benefit from this assignment, stipulating both the price at which, and the troja
But we think a fair and just construction of the resolution, and the course pursued by the Company in regard to the bonds in question, must lead to the conclusion, that the Company intended simply to constitute and appoint an agency and agent for a particular purpose. The object of the Company was manifestly not to devote all their property to pay all their debts, either with preference, or equally pro-rata. Nor was it proposed to make a sale of the property in any manner, which was placed in the hands of the trustee. And it is equally manifest that the Railroad Company did not propose to divest itself of the title to these bonds, nor even to place the possession of them beyond its reach. Its object only was to use certain of its property, at a certain price, to pay certain debts. And being a corporation, it was necessary that a resolution declaring the object should be adopted, and an agent appointed to act in place of and for the corporate body. One of their number, Henry H. Sibley, is selected as the agent of the corporation, and the bonds placed in his hands. And though in the resolution he is termed a “trustee,” that can have little influence in determining his true relation to the Company. This must be determined from the object to be accomplished, the nature of the duties required of the party selected to act in the premises, and the powers conferred on him. These duties, in the case at bar, are such as would naturally belong to an agent, and only just sufficient power was vested in the Respondent to discharge them. He was entrusted with no discretionary powers, was authorized to do no act requiring the exercise of judgment, but was only the instrument of the Company to perform certain acts, in
That the possession of the agent, is in law, the possession of the principal, will not be disputed, and that in fact, as between the Company and the Respondent, it was understood that the Company had the right at any time to resume possession of these bonds, is manifest from the fact that the Company did take possession of a part of these bonds without objection so far as appears on the part of the respondent. Nor does it appear that the Respondent incurred any liability except to his principal in accepting these bonds, and had he chosen at any time before the expiration of the sixty days to return these bonds to the Company, he could not have been held liable to the creditors for such act. Whether, therefore, the resolution in question be considered as an assignment, or the appointment of an agent, we are equally satisfied that the title to, and interest in the bonds in question remained in the Railroad Company.
We are next to consider whether this property can be reached by the garnishee process. See. 1, Chap. 80, Rev. Stat. prescribes in what cases, and under what conditions the process may issue. Section nine of the same chapter provides when judgment maybe rendered on the answer of the garnishee, and declares that “ if it appear from the testimony of the said garnishee, or other testimony that may have been taken in the case, that the said garnishee is indebted to the Defendant, or that he has property belonging to the Defendant in his possession, the Court shall proceed to render judgment against the said garnishee,” &c. From section twenty-one of the same chapter, it might be inferred that a jury trial could be had in these cases. It is by no means clear what was the intenf of the legislature, in adopting that section. No provision is made for empannelling a jury, nor for forming an.issue, but the whole scope of the chapter seems to treat the proceeding as an “ examination ” of the garnishee only. The garnishee is treated of in all respects as a witness, and we think the intent of the Statute is that he should be subject to the same
It was urged by the learned counsel who argued in support of the attachment against these bonds in the case of Caldwell vs. Sibley, that, though the conveyance to the Respondent was void as to creditors, who might see proper to proceed averse to it, yet that this would not aid the Plaintiff, who, in availing himself of the garnishee process, impliedly affirmed, and ratified the conveyance of the Company to Sibley. The theory is plausible, but does not seem to be sustained by anything in our own Statute, or in any authorities [to which we have had access.
But even though this resolution be viewed as an assignment, we see no obstacle in the way of the creditor, who chooses to adopt this method, rather than that by attachment, to reach the proj>erty. The Statute offers the creditor his choice of two remedies. If he can show by the garnishee that the latter holds property belonging to the principal debtor, the Statute gives the creditor the right to secure that property by judgment against the garnishee. And we fail to see that this right is in anywise affected by the manner in which the garnishee became possessed of the property of the debtor, whether by assignment or otherwise. Does the garnishee hold property oí or owe the Defendant in the principal action? seems to be
It was urged on the argument, that if the validity of an assignment may be tested in this manner, that the garnishee process would always be resorted to in cases of this kind, rather than the usual proceeding by attachment. If this were true, it furnishes no valid argument against this proceeding. Where the defect in the assignment appears on. the face of the instrument, and the garnishee answers that he holds the property by virtue of the assignment, the matter would seem to be as fully before the Court, as if the same fact were set up by way of answer to a suit commenced by attachment, and may be as properly passed upon by the Court in one case as in the other. But in fact, it is not probable that the garnishee process would be often resorted to in these cases. The party seeking to avoid an assignment by the garnishee process, would take the answer of the garnishee at his own risk, and be bound by it. He would necessarily be more restricted in a full examination of all the facts, especially in the matter of introducing evidence, than in a suit commenced by attachment, or otherwise. And where the assignment is attacked on the ground of fraud in fact, there are probably few cases where a jnarty would wish to rely on the evidence of the garnishee alone to prove the fraud. At all events, it seems that Courts have considered the validity of assignments, when brought before them under this process, and we find no authority holding that the practice is not correct. Drake on Att. 464, Lamb vs. Stone; 11 Pick. 527, Cowles vs. Coe; 21 Conn. 220, 6 Pick 474, 9 Pick. 435. And in cases of fraudulent assignments or conveyance of lands, where the garnishee has been discharged, no question seems to have been made as to the power of the Court on this process to examine as to the validity of the conveyance, hut the garnishees were discharged on the ground that real estate
From these considerations, we think it manifest, that where property is so situated, or of such a nature that it may be reached by attachment, or other process than that of garnishee, the latter will not ordinarily be resorted to. In fact, the principal object of the garnishee process, seems to be, to reach precisely such cases as the one at bar, where none other can be made available. Drake on Attachments, See. 451. “Garnishment is an effectual attachment of the effects of the Defendant in the garnishee’s hands, differing in no essential respect from attachment by levy,- except as is said, that the Plaintiff does not acquire a clear and full lien upon the specific property in the garnishee’s possession, but only such a lien as gives him the right to hold the garnishee personally liable for it or its value. ” Do. See. 453. Nor is it true that the rights of third parties or creditors are more prejudiced by this proceeding than by process of attachment. The parties defendant only are changed, the other creditors in neither case being joined. If the Respondent claim the property, he is before the Court to interpose his title. If the property belongs to the principal debtor, he can have no interest in making that fact appear, and if the property belonged to the creditors which were specified in the list, directed by the Company to be furnished to the Respondent, we know of no form of action in which they could claim a hearing, to any greater extent than in this. There seems to be no dispute however, but that the disclosure of the garnishee has presented the facts in the case fully and truly, and in fact, the Court is probably as well advised of the fights of those creditors to the property in question, as it could be were they present in person, or by attorney. This objection, therefore, does not require further consideration. It may be added, however, to prevent misunderstanding, that the Court does not intend to decide in the views above expressed, that the rights of a creditor are concluded by the answer of a garnishee, nor to suggest the proper remedy when it is claimed such rights are prejudiced.
The only other point raised on the argument, which it is
The judgment of the Court below should be reversed, and the cause remanded to the Court below, with directions to enter judgment against Henry IT. Sibley, the Garnishee, for the amount of the judgment of the Plaintiff' in Error against the Minneapolis & Cedar Valley Railroad Company.