Lind v. Hurd

148 Minn. 190 | Minn. | 1921

Lead Opinion

Quinn, J.

This is an appeal by the plaintiff from an order of the district court of Hennepin county, dismissing a garnishment proceeding in the above entitled-action, and discharging the garnishee.

In May, 1919, the defendant Anna M. Perkins obtained a verdict of a jury in the district court of Hennepin county against D. J. Orfield and Andrew V. Lien, for $800, damages for a fraud practiced upon her in a real estate transaction. At the time of the service of the garnishee summons on February 9, 1920, an appeal from an order denying the defendants’ motion for a new trial in the fraud case was pending in the supreme court. A decision had been rendered affirming the order, but a motion for reargument had been made which was still undetermined, though it was later denied.¹

In February, 1920, the plaintiff brought this action upon certain promissory notes, on which he alleges the defendants Anna M. Perkins and Andrew V. Lien were liable, and at the same time caused a garnishee summons to issue, which was duly served upon the said garnishees on February 9, 1920, after verdict and before judgment was entered thereon and while the appeal therein was still pending in the supreme court. The garnishees disclosed that they had no property or effects ‘in their possession at the time of the service of the garnishee summons, belonging to Mrs. Perkins, other than the verdict against them for $800 in the fraud case.

The question presented for decision is, whether a verdict for damages, in an action for fraud, represents an indebtedness, or constitutes money, property or effects such as may be reached by garnishment, before judgment is entered thereon. The statute authorizing garnishment proceedings provides that no person or corporation shall be adjudged a garnishee in any of the following cases:

(1) By reason of any money or other thing due to the defendant, unless at the time of -the service of the summons the same is due absolutely, and without depending on any contingency.

(2) By reason of any debt due from such garnishee on a judgment, so long as he is liable to an execution thereon.

(3) By reason of any liability incurred, as maker or otherwise, upon any draft, bill of exchange, or promissory note. G-. S. 1913, § 7864.

At the time of the service of the garnishee summons, the life of the verdict depended upon the action of the appellate court. If a new trial were granted the fact would ipso facto destroy the verdict. While the appeal was still pending, the parties thereto, subsequent to the service Of the garnishment process, might have agreed upon a sum and settled their controversy and thereby defeated the garnishment. Dibrell v. Neely, 61 Miss. 218. Again, a person against whom a verdict stands upon which, no judgment has been entered is, as a garnishee, entitled to protection, and, whether such verdict is exempt from garnishment, is a matter upon which he should not be called upon to decide at his own peril. Ulrich v. Hower, 156 Pa. St. 414, 27 Atl. 243.

A verdict is the decision of a jury upon an issue of fact, and while it gives the successful party a property right which is assignable, it does not necessarily follow that it is subject to garnishment. Garnishment is a proceeding in the nature of an involuntary suit by the defendant against the garnishee for the benefit of the plaintiff. The party sought to be garnished must be one against whom the defendant has a right of action.

In the instant case the defendant Perkins had no such right of action against the garnishees at the time of the service of the garnishee summons; she had a mere verdict on which the entry of judgment was necessary to give her a right of action. No matter how long the verdict stood upon the records of the court, no action could be maintained thereon. In such a case the garnishment must fail, because the verdict is entirely lacking in the essentials of a subject of garnishment. Detroit Post & Tribune Co. v. Reilly, 46 Mich. 459, 9 N. W. 492; Cappelli v. Wood, 27 R. I. 411, 62 Atl. 978, 4 L.R.A.(N.S.) 624, 114 Am. St. 54; Lehmann v. Farwell, 95 Wis. 185, 70 N. W. 170, 37 L.R.A. 333, 60 Am. St. 111; Thayer v. Southwick, 8 Gray (Mass.) 229; Wilde v. Mahaney, 183 Mass. 455, 67 N. E. 337, 62 L.R.A. 813. It follows that the attempted garnishment was invalid.

Affirmed.

1 [145 Minn. 68.]

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Concurrence Opinion

Hallam, J.

(concurring).

I concur in the result. It seems to me the question in this ease is whether an unliquidated tort demand arising out of fraud is garnish-able under G. S. 1913, §§ 7862, 7863. If not, that ends the case. If such a demand is garnishable, then, it seems to me, the commencement of an action on the demand does not render it immune from garnishment until judgment is rendered in the action. See Blair v. Hilgedick, 45 Minn. 23, 47 N. W. 310; Harvey v. Great Northern Ry. Co. 50 Minn. 405, 52 N. W. 905, 17 L.R.A. 84; Duxbury v. Shanahan, 84 Minn. 353, 87 N. W. 944; Shinn, Attachment and Garnishment, § 479. I am willing to assent to the proposition that an unliquidated claim for damages for fraud against the garnishee is not property or money in his hands belonging to the defendant or indebtedness owing by him to the defendant as those words are used in sections 7862, 7863, G. S. 1913. See Shinn, Attachment and Garnishment, § 483.