11 Colo. App. 1 | Colo. Ct. App. | 1898
delivered the opinion of the court.
July 25, 1889, in the district court of Clear Creek county, appellant Hamill, who is a defendant in this suit, recovered judgment against appellee Peek for $2,088.50, and costs.
The important and controlling question for determination is one solely of law. Is a judgment debtor subject to garnishment under process from a court other than that in which the judgment was rendered? The proposition has never been raised before the appellate courts of this state, or, if it has, there has been no judicial determination of it. Neither have we any statutory or code provision directly in point. In the courts of other states and in those of the United States, where the question has been considered, there is an irreconcilable conflict of authority. By some it has been expressly held that a judgment debtor is subject to garnishee process from any court of jurisdiction competent to issue it. Luton v. Hoehn, 72 Ill. 81; Fithian v. R. R. Co., 31 Pa. St. 114; Halbert v. Stinson, 6 Blackf. (Ind.) 399; Gager v. Watson, 11 Conn. 168; Jones et al. v. Onge, 67 Wis. 520; Belcher v. Grubb, 4 Harr. (Del.) 461; Osborn v. Cloud, 23 Iowa, 104.
Some other cases cited do not go to the extent claimed for them by appellee: They simply hold that a judgment cannot be levied upon and sold, but that the proper way to reach the debt evidenced by it, is by process of garnishment. The
Some of these authorities, especially in the federal courts, even go to the extent that garnishee process will not lie where the debt is in suit in another court. In Wallace v. Me Connell, supra, the court said: “ The plea shows that the proceedings on the attachment were instituted after the commencement of this suit. * * * If this doctrine be well founded, the priority of suit will determine the right. The rule must be reciprocal, and where the suit in one court is commenced prior to the institution of proceedings under attachment in another court, such proceedings cannot arrest the suit; and the maxim, qui prior est tempore potior est jure, must govern the case. This is the doctrine of this court in the case of Renner and Bussard v. Marshall, 1 Wheat. 216, and also in the case of Beaston v. The Farmers’ Bank of Maryland, 12 Pet. 102; and is in conformity with the rule that prevails in other courts in this country, as well as in the Eng
Shinn v. Zimmerman is a well considered and leading case cited in all of the cases which hold the doctrine that a judgment debtor cannot be held by garnishee process issuing from another court. It is true that in this case the garnishee proceedings were had in another state than that in which the judgment was rendered on the debt sought to be garnished, but the reasons given and principles enunciated are equally applicable to similar proceedings in different courts of the same state. In the unanimous opinion of the court rendered by the Chief Justice, it was said: “ But, if the debt be attached after judgment, what protection has the garnishee against the judgment or the claims of the attaching creditor ? His property is liable to immediate seizure and sale under the execution upon the judgment, while, at the same time, he is made liable for the amount of the judgment to the attaching creditor. If it be said that the court will exercise its controlling power to prevent such injustice, the answer is that even when the judgment is in one of the courts of this state,- the levy and sale may be made at a time when the court cannot exercise its controlling power. * * * Upon a question of conflict of jurisdiction, it is clear that the court which first acquires jurisdiction of the subject-matter of controversy is entitled to exercise it, and to enforce the execution of its own judgment. * * * This view of the case is fully sustained by the authorities. No case has been referred to, none is known to exist, to sustain the position that a judgment debt is liable to attachment. The authorities are clear against the position.”
In the first named, after giving the reasons urged in the decisions holding the doctrine that a judgment debtor is liable to garnishee process from any court, the author says: “ However strongly these reasons apply to the case of a garnishment of the judgment debtor in the same court in which the judgment was rendered, their force is lost when the judgment is in one court and the garnishment in another. There a new question springs up, growing out of the conflict of jurisdiction which at once takes place. Upon what ground can one court assume to nullify in this indirect manner the judgment of another? Clearly the attempt would be absurd, especially where the two courts were of different jurisdictions, or existed under different governments.” Mr. Freeman says on the subject: “ The garnishment of debts is authorized upon the theory that the garnishee owes something to the defendant, which, after the service of garnishment, may be lawfully withheld from the defendant and appropriated to the payment of defendant’s creditors. But when the debt has merged into a judgment, the defendant has no right to delay its payment: nor has he any means aside from payment of preventing his property from being taken and sold under execution for the satisfaction of the judgment. Therefore it has been held in a majority of the states, that a debt due by judgment cannot be reached by garnishment.”
“Mr. Waples says: “He,” — the debtor, — -“has no cause of complaint when he gets acquittance by paying to another under judicial order what he would otherwise be obliged to pay to his immediate creditor. He would have cause to complain should he be made to pay at a time when such payment would give him no acquittance or under circumstances which
The courts which take a contrary view simply say, that a debt is none the less a debt because it is merged in a judgment, and as the garnishment statutes make all debts subject to its process, allowing no exception, judgment debts must he included. They admit that hardship may be inflicted upon the debtor, that in order to protect himself he may, at his own expense, be compelled to institute proceedings to restrain the sale of his property under execution issued upon the original judgment; that in some instances he may be compelled to pay twice and be relegated for his indemnification to a suit against the creditor in the judgment for the recovery of the amount so doubly paid, — a remedy which would carry with it no relief if the creditor happened to be insolvent. It would seem that the mere statement of the possible injuries which might result to the garnishee would be sufficient to condemn the doctrine unless it be supported by the imperative mandates of a statute. These decisions would appear to have overlooked or ignored certain fundamental principles upon which all garnishment statutes are based, which are recognized in all jurisdictions, and which are law equally with the statute. These are, that the garnishee should not be placed by the garnishment in any worse posi
If it be claimed that this rule should prevail because it is within the strict letter of the statute, then why should not debts due by municipal corporations be subject to garnishment without special statute to that effect? A debt is none the less a debt because it is owing by a municipality. Why, also, should not money paid into court for the benefit of a creditor, be subject to the process? There is no contingency
There is no statute or code provision in this state, authorizing the garnishment of a judgment debt by process from another court, nor regulating procedure therein, and in such cases and under such circumstances we think the safer and better doctrine is that it is not within the class of debts covered by the garnishment statute and that the process will not lie in such case. It is founded in the better reason, and on sounder principles of justice, as well as supported by the preponderating weight of authority. It gives to the debtor no more than just and proper protection, and takes away no right nor remedy from the garnishing creditor. By proper proceedings in the forum where the judgment was rendered he can secure the same result as he could if the garnishment process from another court were permitted, and this without bringing about any vexatious conflict of jurisdiction or subjecting the debtor to any additional and unjust expense or danger.
It is contrary to public policy that in judicial proceedings there should be a conflict of jurisdiction between courts, and statutes should not be construed so as to permit it, especially if any other construction can be given, which will give force and effect to its object and purpose. Certainly the legislature did not intend by the- enactment of the garnishment statute to impliedly annul another provision of a law of equal force, and allow a- court to be divested of its juris-diction once properly acquired by another court of only 'equal jurisdiction. To so hold would invite an unseemly conflict which could not fail to seriously obstruct the ad
Another consideration of much force is that in garnishment after judgment, only the plaintiff and garnishee are the parties. A creditor who has prosecuted an action on a debt to judgment should not be deprived of its fruits by a proceeding to which he was not a party, and of which he had no notice. His rights are to be materially affected and he has a right to be heard. It is alleged in the answer of defendant Hamill in this cause, and is not denied, that he had no notice of the pendency of the garnishment proceedings.
Our conclusion is that a judgment debt is not subject to garnishment by process from a court other than that in which the judgment was rendered; that it can be reached and impounded to satisfy the debts of the judgment creditor cam not be denied, but it must be done by proceedings in the court which has jurisdiction of the judgment sought to be reached.
Entertaining these views, we hold that the Arapahoe district court had no power to give judgment against the garnishee; when it was disclosed that the debt sought to be garnished was upon a judgment of another court, he should have been discharged.
The plaintiff claimed that he was entitled to certain credits upon the Hamill judgment, which would reduce the amount appearing upon the face of the execution, and this was ah issue in the action. The court found in favor of plaintiff,
It is not necessary to pass upon the motion of appellee to strike the hill of exceptions, for the errors which require an order of reversal appear in the record proper. The bill of exceptions has not been considered.
It will be ordered that the judgment he reversed and the cause remanded with instructions to dissolve the injunction except as to the collection on the judgment against appellee and in favor of appellant Hamill of a sum greater than $1,673.47 with proper interest from May 25, 1895.
Reversed.