36 P. 783 | Nev. | 1894
On June 4, 1891, A. E. Harris executed and delivered to the defendant, W. H. Chedic, a promissory note for about $4,000, which was secured by a chattel mortgage upon certain property situated in Ormsby county, Nevada. This note and mortgage, it is claimed, were immediately assigned by the mortgagee to his mother, the defendant Adeline A. Chedic, as security for $3,900 which he then owed her upon a note made by him to his father some time prior to that, and by his father given to her.
Harris had also executed another chattel mortgage upon the same property to D. C. Simpson, upon which Simpson commenced an action of foreclosure. On February 10, 1892, the Chedic note and mortgage were assigned by Adeline back to the defendant W. H., and on February 11, 1892, he intervened in the action so commenced by Simpson; alleging that *129 he was the owner of the said note and mortgage, and asking for a judgment thereon against Harris, and for a foreclosure of the mortgage, as a first lien upon the property. On May 19, 1892, a decree was duly rendered in his favor, accordingly.
On April 19, 1892, the plaintiff obtained a judgment against the defendant, W. H. Chedic, for the sum of $1,605, with interest and costs, upon a note made by the latter to him on October 1, 1890. The next day he duly served a notice of garnishment upon Harris, intended to garnish the money then owing by him to W. H. upon the note and mortgage then in suit.
August 4, 1892, W. H. assigned the judgment so obtained by him against Harris to the defendant Adeline, which assignment the plaintiff alleges to have been made and accepted for the purpose of hindering, delaying and defrauding W. H. Chedic's creditors. February 6, 1893, both of the defendants assigned the said judgment to Simpson for the sum of $4,195, which was paid to Adeline.
February 16, 1898, a second execution was issued upon the plaintiff's judgment against W. H., and thereunder, on the same day, a notice of garnishment was duly served upon the defendant Adeline, to which she made no answer. Under supplementary proceedings she was then cited to appear before a referee, where she denied any indebtedness to W. H., and claimed to be the owner of the money obtained by her from Simpson. Thereupon, an order was made, authorizing the plaintiff to institute an action against her to recover so much of the money as might be necessary to pay the plaintiff's judgment against W. H. Chedic, and this action was then commenced. The execution upon the plaintiff's judgment was returned unsatisfied.
The complaint asks for judgment against the defendant Adeline for the sum of $2,16480, with interest, that being the amount due upon plaintiff's judgment against W. H. Chedic. Upon the trial, judgment was rendered for the defendants, and the plaintiff appeals. To the proper disposition of this case, it seems necessary to first determine what are the plaintiff's rights under the allegations of his complaint, and what were the issues to be determined upon the trial. Admitting, as contended by the plaintiff's attorneys, that by the assignment made February 10, 1892, from Adeline A. Chedic to W. H. Chedic, the latter *140 became vested with such a title to the note and mortgage as made the debt owing by Harris subject to the claims of W. H. Chedic's creditors, we are of the opinion that the plaintiff, by his garnishment of Harris, obtained no claim upon the money received by her in consideration of the assignment of the judgment to Simpson.
This conclusion is based upon two grounds: (1) However it may be with specific property in the hands of a garnishee, our conclusion is that garnishment does not give the creditor any lien upon a debt owing by the garnishee to the debtor in the action, nor upon any money or property with which he may afterwards pay it. The books speak of it as giving a "quasi lien" — such a lien as will justify the garnishee in refusing to pay his creditor until the garnishment is disposed of, and as will give the creditor a right of action against the garnishee for any money or property in his hands owing or belonging to the party against whom the writ runs (Wade, Attachm., sec. 329), but not such a lien as will enable the creditor to follow any money that may be paid thereon into the hands of third persons. The only case cited as sustaining a contrary view is that of Sessions v. Stevens,
2. It is, however, alleged in the complaint that the execution upon the plaintiff's judgment has been returned unsatisfied, and that the assignment of the judgment by W. H. Chedic to his mother was without consideration, and was made and accepted for the purpose of hindering, delaying, and defrauding his creditors. We are of the opinion that, if these allegations are supported by the proofs, they are sufficient to entitle the plaintiff to a judgment against Adeline for the amount of his judgment against W. H. Chedic. The *142
complaint shows that W. H. Chedic obtained the judgment against Harris. Presumptively it belonged to him. As such, it constituted property that was subject to the claims of his creditors, and if assigned by him, and received by the assignee, for the purpose of defrauding his creditors, the assignee held it in trust for the creditors; and if she subsequently assigned it to another, as it is alleged she did, then the money received by her upon the assignment is held subject to the same trust. (Ferguson v.Hillman,
3. A jury trial was demanded by the defendants, but objected to by the plaintiff, who contended that the case was one in equity, and should be tried by the court, or, if a jury were called, that only special issues should be submitted to it. The court ruled that the action was at law, and should be submitted to the jury for a general verdict; and at the close of the testimony it was, against the plaintiff's objections, accordingly so submitted. A general verdict was found, upon which judgment was rendered for defendants. In this ruling, we are of the opinion that the learned judge fell into error. The principle concerning the right of a party to a jury trial is thus stated in Fish v. Benson,
Under our system, where law and equity are administered by the same court, and in actions which, in form, in no wise differ from one another, it is sometimes somewhat difficult to determine whether the action is at law or in equity, or, perhaps more accurately, whether it calls for legal or equitable relief. The rule for determining this is well and accurately *143
stated in Cole v. Reynolds,
The action against Adeline Chedic is based upon a state of facts in which, prior to the code, relief could only have been obtained in a creditor's suit in equity. The property sought to be made subject to the plaintiff's demand could not be reached or levied upon by an officer. "In cases where the legal title to the property is such that it cannot be seized under execution, resort to equity is necessary." (Mulford v. Peterson,
Murtha v. Curley was an action brought to recover a money judgment against the defendant, upon the ground that he had, for the purpose of hindering, delaying, and defrauding the creditors of one Doyle,, of which the plaintiff was one, taken a mortgage from Doyle upon certain personal property, which he had subsequently foreclosed, and converted the proceeds to his own use. The plaintiff obtained judgment, but upon appeal to the general term (47 N. Y. Super. Ct. 393) the judgment was reversed; that court being of the opinion that the action was one at law, and, as such, not maintainable. The plaintiff then carried the case to the court of appeals (
4. Being an equity case, only special issues should have been submitted to the jury; and it was clearly error to direct them, against the plaintiff's objections, to find a general verdict, and then to vender judgment thereon as in an action at law. (Dunphy v. Kleinschmidt, 11 Wall. 610, 615; Simpson v. Harris,
5. From the defendants' testimony, it appears that the note which they claim was owing by W. H. Chedic to Adeline Chedic, and to secure which he assigned the judgment in the foreclosure suit, was indorsed and delivered by the payee, his father, to Adeline, a month or two before his death. The plaintiff contends that the evidence also shows the transaction to have been a gift in expectation of death; that he recovered from the illness from which he was then suffering; that this recovery had the effect to revoke the gift; and, consequently, that she had no title to the note; and, aside from that, he owed her nothing — the transfer of the judgment to her was without consideration. Upon this theory the plaintiff requested the court to submit several special issues, and afterwards to make findings concerning the matter, which *146
were all refused. We are of the opinion that these rulings were correct. The note had been, according to the testimony, actually indorsed and delivered to Adeline Chedic. Thereby, the legal title had been transferred to her; and this gave her the right to enforce payment, without regard to the relations existing between herself and the indorser. As to the maker of the note, except, possibly, in so far as he may have had an offset against the payee, the note was hers. The gift was not void, hut voidable; and that only by the donor, or his lawful representative. (Prouty v. Roberts, 6 Cush. 19; Carrier v. Sears, 4 Allen, 336; Brown
v. Penfield,
But, of course, without regard to this question, and without regard to whether anything was or was not owing from W. H. Chedic to his mother, if the assignment was made and accepted for the purpose of hindering, delaying or defrauding his creditors, as to those creditors it was void. (Simpson
v. Harris,
Judgment reversed, and cause remanded for a new trial.