| Mich. | Oct 5, 1875
In July, 1874, the plaintiff in error recovered judgment .against Simmons for damages, two hundred and eighty-eight •dollars and forty-two cents, besides costs of suit, and whilst that suit was pending, and on the 16th day of February of the same year, they summoned Hill to answer as garnishee. The affidavit for this summons is not in the printed record, but the summons itself is set out, and it thereby appears that the claim against Hill was not that he was in any way indebted to Simmons; but that he “had property, money, goods, ■chattels, credits and effects in his hands, or under his control belonging” to Simmons. Mr. Hill appeared and made disclosure, and according to the record he admitted himself to be indebted in the sum of one thousand three hundred and seventy-four dollars and ninety-six cents, either to Simmons or to one Frederick W. Thrall, and averred that he was unable to say to which of the two he was thus indebted. It does not appear that he was asked whether he “had property, money, goods, chattels, credits or effects ” in his hands ■or under his control belonging to Simmons, nor does it appear that any thing was said in relation thereto, although that was the specific ground of the proceeding against him.
In this state of the case a stipulation was made by the plaintiff’s attorney and the attorneys for Simmons of the following tenor: “It is hereby stipulated , and agreed by and between said plaintiffs and said garnishee'defendant, by their respective attorneys, that an order may be entered in said -cause permitting and requiring Frederick ~W. Thrall, named
This proceeding for deciding a supposed question between Simmons and Thrall, for the purpose of settling whether or not the plaintiffs Avere entitled as against Hill, Avas rested on § 6492, C. L.
The actual frame of the issue suggested by the foregoing order does not appear in the printed record. As, however, the order indicated what it should be, aa'6 may perhaps assume that it folloAved the order. The trial Avas before the court, and resulted in a special finding of facts and a. judgment thereon sustaining Thrall’s right, and adverse to. the liability of Hill, the guarnishee. The plaintiffs then brought error on this judgment, and they complain of the conclusions of law on the facts. If upon the whole record they were not entitled to recover against Hill, the reasons stated by the court beloAV for its conclusion are immaterial.. It cannot have escaped notice that the case presente several striking incongruities. The whole garnishee proceedings-Avere founded on the act of March 16th, 1861, as amended,.
The first ground is, that the person to be garnished is alleged to have property, money, goods, chattels, credits and effects in his hand's or under his control belonging to the defendant; and the second is, that such person is indebted to the principal defendant. — § 6465. These grounds axe distinct, and the party is never subject to be charged and held upon one, when the process is confined to the other, unless it chance to happen, which .must be very seldom, that the true condition of the matter in question is at the same time within the legal meaning of the second ground, and of some term in the first. An examination of the act will show that the legislature considered the distinction between the two grounds as one to be carefully observed in the management of the remedy. The' distinction is plainly drawn in the first section, and the two grounds, though allowed to be joined, are nowhere confounded; ' The interlocutory proceedings, as well as the kind of judgment, are to be different in the one case, from what they are required to be in the other.—See the sections from, §.6472 to § 6474, inclusive, and § 6482 to § 6489, inclusive; also § 6492, § 6497 and § 6498.
The basis of the particular case 'is therefore not to be departed from in the intermediate steps, or in the final .determination. _ ,
Now, here we find, as before stated, that the plaintiffs charged Hill, not as debtor of Simmons, but upon the distinct and separate claim, that he held'or, controlled property, money, goods, chattels, credits and effects which belonged to Simmons; that Hill in disclosing did not admit any thing under the claim thus made against Mm, but did admit that
But let it be admitted that an issue was made agreeably to this order respecting Thrall’s right to a fund claimed to be in Hill’s hands or under his control, and which the plaintiffs alleged to belong to Simmons, still the facts found wholly failed to support the plaintiffs’ side of such an issue. And on the other hand, if we may assume that the issue made and tried was, whether the admitted indebtedness of Hill was due or owing to Thrall, intead of Simmons, the facts found were likewise against the plaintiffs. Hence in any view the plaintiffs were irot entitled to hold Hill, and the final result was not objectionable.
Judgment affirmed, with costs.