Coombs v. Davis

2 Wash. Terr. 466 | Wash. Terr. | 1885

Opinion by

Turnee, Associate Justice.

The appellant, as garnishee in the case of L. Davis <& Son v. TP. L. Coombs et al., pending in the District Court of the First Judicial District, holding terms at TValia Walla, ivas required to appear before the Judge of said Court at chambers, as provided by Section 182 of the Code, to answer concerning property in her possession or under her control, belonging to the defendants or either of them, or in which they or either of them had any interest. Upon the examination before the Judge which followed, the appellant admitted having in her possession notes and sewing machine contracts to the amount of over five thousand dollars, which had been endorsed and delivered to her by the defendants as security for the sum of thirty-five hundred dollars, which she testified she had loaned them on September 28th, 1883. In response to questions upon direct and cross-ex-animation, she made a detailed statement of facts, for the purpose of showing the manner in which she acquired the large sum claimed to have been loaned by her to the defendants, who were her husband and sons, and concerning her and their relations with the plaintiffs and their family. This detailed, statement was not consistent in every respect, and tended very strongly to impeach the bonafides of the transfer to her of the notes and machine contracts.

Upon this state of facts the Judge below made an order, requiring the garnishee to deliver the said notes and machine contracts to the sheriff, the same to be collected by him, and the proceeds to be applied to the satisfaction of any judgment that might be recovered by plaintiffs against defendants., and the residue to be returned to the garnishee.

The garnishee excepted to this order. The cause is here under the Appeal Act of 1883, and the appellant, the garnishee, assigns said order as error.

Section 182 of the Code, after providing for the examination of garnishees in attachment proceedings before the Court, or Judge, or a referee, continues: “The Court or Judge may, after such examination, order personal property capable of manual delivery to be delivered to the sheriff on such terms as may be just, having reference to any liens thereon or claims against the same, and a memorandum to be given of all other property, •containing the amount or descrqffion thereof.”

It was not intended by this section of the Code to establish an adversary proceeding in which the title to property in the hands of a garnishee, and claimed by him, might be disputed and litigated. The right of the Court or Judge in such a proceeding depends entirely upon the admissions of the garnishee.

If he admit the property in his hands to be the property of the defendant, free from claim on his part, the Court may order the delivery of'the property to the sheriff, to answer any judgment that may be recorded against the defendant. ' If ho admit the property to be that of the defendant, coupled with a claim or lien against it in his favor, the Court or Judge may still order the property delivered to the sheriff on such terms as may be just, having reference to the claim or lien of the garnishee. The proceeding is one to probe the conscience of the garnishee by an examination under oath, when his unsworn memorandum, provided for by Section 183 of the Code, proves unsatisfactory to the plaintiff; and in the nature of discovery in aid of the right of action against the garnishee given by Section 181 of the Co'de. This construction is reasonable, and it obviates grave constitutional questions which any other construction would require to be met.

From these views it follows that the order of the Judge in the proceeding below was in excess of his authority.

Upon the case as made, there was only one order that would have completely and certainly protected the rights of the garnishee.

That was to require her to turn the notes and contracts over to the sheriff, upon being paid the sum for which she held the " «ame as security.

The sewing machine contracts, as we understand them, are contracts by third persons to pay the defendants money at a future time. Extreme diligence is required in the collection and enforcement of demands such as these notes and contracts are ; and as the garnishee is not protected by bond, it would be • unjust to require her to stand idly by, and rely for their collection upon the exertions of a third person.

As to some kinds of property, an order requiring the delivery of the same to the sheriff, and making proper provision for the satisfaction of the prior lien of the garnishee out of the money received from the sale of the same, would doubtless be just. As to property of the character of that in controversy, such an order is not just, as that term is used in the statute.

The order of the Court below is reversed, and the cause remanded for further proceedings.

We concur: K. S. GtBEENE, Chief Justice.

John P. Hott, Associate Justice.