28 A. 605 | R.I. | 1893
The garnishees made an affidavit setting forth that at the time of the service of the writ upon them, for the purpose of attaching the personal estate of the defendant in their hands, they had such personal estate to the amount of two hundred and thirty-three dollars, the net proceeds of a judgment collected by them in favor of said defendant; provided no legal effect should be given to the fact that they had received a letter from John A. Hawkins, prior to this garnishment, stating that he had purchased said judgment; but if the fact stated in said letter was true and the right to the fund, in consequence thereof, was transferred to said John A. Hawkins, then they had no funds of the defendant in their hands at the time of the attachment. They further stated that they knew nothing of the truth of the alleged fact of an assignment of the judgment. The Court of Common Pleas discharged the garnishees, and exceptions were taken.
In a case of conflicting claims a garnishee is a stakeholder, who, after a full disclosure, should be protected from a double liability. But, upon the other hand, if he has a fund which may belong to the defendant, the plaintiff should not be deprived of the benefit of the attachment until it appears that it is not the defendant's property. The rule in this state is that if the garnishee has notice of an assignment of a fund, before he is charged, so that he may make the fact known to the court, he is not chargeable. The converse of this rule is that if he has no such notice he may be charged. See Noble v. Smith,
Without resorting to this power of the court, which we see no reason to question, we think Pub. Stat. R.I. cap. 204, § 34,2 is sufficiently broad to enable our courts to deal properly with a case of this kind. That section provides that *435 the court may order any person to be made a party to any action, and to be summoned in to answer thereto. The provision is comprehensive. Evidently it is not to be restricted simply to parties defendant to the cause of action, for, in section 321 of the same chapter, the court is empowered, in definite terms, to "order other parties to the contract or specialty to be made defendants and to be summoned in to answer such action or suit." The phrase used in Pub. Laws, cap. 433, relating to claimants, is the same that is used in this section 34, viz., "party to the action." This use of terms points to the conclusion that the statute was not intended to include only parties to the cause of action, but to include, as well, those who may be interested in the judgment of the court upon incidental or collateral "matters in controversy," an example of which is found in the case before us. In this view the question of the garnishees could be "properly dealt with" by making the claimant a party to the action and could not be "properly dealt with," without him. We are therefore of opinion that the question of the garnishees' liability, in this case, was not ripe for judgment and that the discharge was premature. Possibly the plaintiff was in fault in not asking to have the claimant summoned in; but as the legality of this mode of procedure has not before been raised, and there will be no injustice to the parties, we do not think he should be deprived of his remedy.
A second garnishment was made at the same time that the garnishees received a check in settlement of an execution in favor of this defendant, and before they had presented it for payment. The general rule is that where one holds a promissory note, bank check, or chose in action, belonging to a defendant, he cannot be charged for the same on trustee process; because these are not money and may never be paid. But if a check or note be held and treated as cash, so that a debt is absolutely due from a trustee to a defendant on account thereof, whether the note or check be good or not, the garnishee should be charged.Hancock v. Colyer, *436
