3 Wash. 331 | Wash. | 1891
The opinion of the court was delivered by
The respondent, Fred Everton, as plaintiff in a cause pending in the superior court in which Powell
“Fifth: That said Parker has, in obedience to said order, appeared, and at his examination, touching said indebtedness, he has denied the- same; but in his statements explanatory of said denial he shows that the same is not made in good faith, but is sham and frivolous, and made for the purpose of hindering and delaying the plaintiff.”
The sixth finding is, in substance, that Parker is indebted to Powell in the sum of $1,515.98, less about $530, for which sum Parker was held as garnishee in some other actions. The court found as conclusions of law that Parker was indebted to the defendant in a sum more than sufficient to pay the judgment; that plaintiff was entitled to an order of the court requiring Parker to forthwith pay said judgment from the funds in his hands due from him to said defendant; and that plaintiff was entitled to recover from Parker the costs of this proceeding. Upon which the court made the following order:
“ It is ordered that the said A. L. Parker do forthwith pay to the clerk of this court the sum of $746.87 damages, and the further sum of $20.30 costs,such sums, respectively, being the amount of the judgment for damages and*333 costs given by this court March 23,1891, in favor of Fred Everton, plaintiff, and against William W. Powell, defendant, together with interest on the sum of said damages allowed by law, for payment by said clerk to said plaintiff, and that said Parker also pay plaintiff's costs in this proceeding, taxed in the further sum of $-.”
From which final order Parker appeals to this court. In our opinion, the fifth finding of fact by the court estopped it from making the order complained of. When the court finds that the garnishee denies the indebtedness, it is not for it to determine whether or not such denial was made in good faith, or whether it was a good or bad denial, true or false. Some of these elements are frequently involved in denials, and sometimes all of them, but whether or not they are involved are questions to be determined by other tribunals; if in an action of debt, as this was claimed to be, by a jury, after due notice given the defendant to prepare his defense. Sec. 386 of the code provides that—
“If it appear that a person or corporation alleged to have property of the judgment debtor, or indebted to him, claims an interest in the property adverse to him, or denies the debt, the court or judge may authorize, by an order to that effect, the judgment creditor to institute an action against such person or corporation for the recovery of such interest or debt; and the court or judge may by an order forbid a transfer or other disposition of such interest or debt, until an action can be commenced and prosecuted to judgment.”
No authority is given here for the court to try any issue of fact. But the respondent disclaims the idea that this proceeding was brought under § 386, but claims that it was brought exclusively under §§ 383,384 and 385. This renders his case still more hopeless, for there is nothing whatever in those sections looking to such an authority on the part of the court. Sec. 383 simply provides that if it is made to appear by evidence or other proof, to the satis
This is not a parallel case with Parker v. Page 88 Cal. 525, relied upon by respondent. There a certain sum of
We have examined the cases cited by respondent, and find that they are either not in point, or hold adversely to his contention. In McGurren v. Garrity, 68 Cal. 566 (9 Pac. Rep. 839), it is held that debts secured by mortgages, like other debts, may be attached by garnishment, and that their payment may be enforced under the provisions of the code of civil procedure relating to proceedings supplemental to execution. That question is not involved in this case. H benicht v. Lissak, 77 Cal. 139 (19 Pac. Rep. 260), discusses contracts, breaches of contracts and measure of damages. No reference is made to garnishments or proceedings supplemental to execution. The citation is probably a mistake. McDowell v. Bell, 86 Cal. 615 (25 Pac. Rep. 128), held that in an action of this kind the court exceeded its authority when it subjected the property of the garnishee to the satisfaction of the judgment creditor’s judgment. To the same effect is Hartman v. Olvera, 51 Cal. 501. We think no case can be found sustaining the action of the court, and if such a case could be found this court could not follow it. It is plain that under the statute the judge exceeded his authority.
The order appealed from is reversed.
Anders, C. I., and -Hoyt, Scott and Stiles, JJ., concur.