Joseph v. Sing Warn, 16 Haw. 106

Joseph v. Sing Warn

16 Haw. 106 | Haw. | 1904

OPINION OF THE COURT BY

HARTWELL, J.

The claim which was adjudicated by the fire claims commission was that of the defendant Sing Warn, and not of Tam Pong, and the award which was made by the commission is in favor of Sing Warn, for whom Tam Pong presented the claim, which was represented before the commission by her attorney, W. A. Whiting, as shown by the testimony in this case.

The certificate is claimed by the plaintiffs to be subject to garnishment, not as a debt but as “effects.” If the debt of which the certificate may be deemed to be evidence were intended to be garnished, there would be the difficulty that no statute authorizes the issuing of a garnishee process against the Territory, unless in claims against government beneficiaries. Morse v. Robertson, 9 Haw. 196.

If a judgment can be levied upon and sold on execution, there is no reason why the plaintiffs should not now take out execution on the judgment certified by this certificate.

It is equally true, that if this certificate is to be treated as in the nature of a judgment, and also is to be classed as “effects” within the meaning of the statute upon garnishment, the plaintiffs are entitled in taking out execution against the defendant, to direct the officer serving the same to demand the certificate of Mr. Whiting, the attorney whose duty it would be to expose the same to be taken on execution. Sec. 1711, C. L. The statute, concerning executions requires that

“Every levy by an officer, in pursuance of a writ of execution issued by any court or justice, shall be made by taking the property levied upon into his possession, care and guardianship, and in his option, by removal of the same to some place of security. The officer shall make an inventory of the property levied upon.” Sec. 1470, C. L.

*110After advertising and selling to the highest bidder,

“The officer shall execute and deliver, to any purchaser at any such sale, such certificate or purchase, or conveyance, as may be necessary.” Sec. 1474, C. L.

If the certificate is to be regarded as in the nature of a judgment, a counterpart of which is on the records of the fire claims commission, it can not be garnished as “effects” of the defendant, for there is no statute providing for the sale on execution of a judgment. At common law a judgment can not be levied upon and sold on execution. There would be no use in garnishing that which can not be disposed of according to law, for the benefit of the plaintiff.

If on the other hand the certificate is not itself a judgment, but is a mere notice certifying that an award of $2,072 has been made in favor of the claim of Sing Warn, its purchaser at a. sale on execution would acquire no right to the money awarded, and no authority to demand and collect it, or enforce its payment to himself.

As the plaintiffs, having now obtained judgment against the defendant would, if the law permitted them to do so, proceed to levy execution on the award upon the order discharging the garnishee being confirmed, we will state the reasons why the law does not authorize a judgment to be levied upon, the same reasons applying to its garnishment as property or effects.

“The mode of levying upon a judgment, and of applying it towards the satisfaction of the writ, is a matter of some difficulty. That it is property is everywhere conceded. But though it is evidenced by some writing or matter of record, such writing •or record is not the judgment, but only evidence thereof.. It would be impossible to seize the judgment, for it is intangible, and it is improper to seize the evidence of it, for that should remain in the custody of some public officer. In this dilemma, the major portion of the courts considering the question have concluded that a judgment can not be levied upon nor sold, and can be subjected to garnishment only.” Freeman on Executions, 3 Ed., p. 433.

“The statute manifestly contemplates a power in the garnishee to withhold the payment of the debt from his creditor upon *111being served with the attachment, and a power of defending him.self against the claim of his creditor after payment under the .attachment. It never could have been designed to subject him .to the liability of twice paying the debt, or to deprive him, after jpaying the debt under the attachment, of a legal defence to the ■claim of his creditor. The whole design of the statute, in this nespect, is to place the attaching creditors in the place of the 'Original creditors of the garnishee. And'hence the attachment is a good plea to an action for the recovery of the debt. But if the debt be attached after judgment, what protection has the .garnishee against the judgment or the claim of the attaching creditor ? His property is liable to immediate seizure and sale under the exécution 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 can not exercise Its controlling power. And when the judgment is recovered in another state, we have no ground for assuming that the court will stay the execution of its process on account of an attachment issued here.” Shinn v. Zimmerman, 23 N. J. L. 152.

There is no doubt that debts may be garnished by a service of summons upon the debtor. We think that this is the only mode authorized by our statute. A similar statute in Minnesota .received the same construction.

“We do not interpret this statute as prescribing two different .and dissimilar methods of effecting such a garnishment, either one of which may be pursued at pleasure. It does not provide that garnishment of a mere debt may be made either by proceedings against the debtor and service of summons upon him, or by like proceedings against and service upon the creditor or his assignee, or 'any .trustee to whom the creditor may have .assumed to transfer his title. * * * *

“It is true, the general term ‘property’ may often embrace mere debts and choses in action. Whether, in a particular statute, it is to be construed as having that broad meaning, or a more limited one, must be determined by the aid of the familiar rules ■relating to statutory construction. The word ‘effects,’ defining things which are subject to garnishment by service upon the person having such ‘effects’ in his possession or under his eon-fcrol, is made by the statute to include bill of exchange, promis*112sory notes, drafts, bonds, certificates of deposit, bank notes, contracts for tbe payment of money, and other written evidence of indebtedness in the hands of the garnishee at the time of service' upon him. It may be conceded that a garnishment of such, ‘effects’ would reach all of the material objects above named which might be in the possession of the garnishee. But it will be observed that the things here defined to be ‘effects’ are all things of a material nature; and intangible 'legal obligations— debts — are not mentioned, while they are clearly designated in the prior sections as subjected to garnishment by service upon the debtor. It may be assumed, too, that a garnishment of the-bills of exchange or other instruments, which in themselves, express the obligation of the maker, by service upon the person having such instruments in his possession, would be effectual as; a garnishment of the legal obligation of the maker or person whose obligation is thereby expressed. But that is not this-case.” Ide v. Harwood, 30 Minn. 194-195.

The Wisconsin and Michigan cases cited by plaintiffs’ counsel are based upon statutes broader than our own. For instance,, the Wisconsin statute provides that “from the time of the service of the summons upon the garnishee he shall stand liable to the plaintiff to the amount of the property, moneys, credits, and effects in his possession or under his control, belonging to the-defendant, or in which he shall be interested, to the extent of his right or interest therein, and of all debts due, or to become due, to the defendant, except such as may be by law exempt from execution. Any property, moneys, credits, and effects held by a conveyance or title void as to creditors of the defendant, shall be embraced in such liability.” La Crosse Nat. Bank v. Wilson, 74 Wis. 398.

Whether a creditor’s bill would lie in this case would be an interesting question if it were before us. The question is discussed in 3 Breeman on Executions, Sec. 425. The undoubted hardship of a case like this suggests the importance of legislation upon the subject.

The exceptions are overruled and the case is remanded to the Birst Circuit Court.