12 S.D. 176 | S.D. | 1899
This is an appeal from a judgment of the circuit court affirming a judgment of the justice court in favor of the plaintiff and against the defendants. The action was commenced in the justice court by complaint in writing, to which defendants demurred. The demurrer was overruled, and the defendants Schouweiler Bros, elected to stand upon their demurrer, and took an appeal to the circuit court upon questions of law alone, based upon a statement, as provided by the statute, and, the judgment of the justice being affirmed, they now appeal to this court.
The appellants contend — First, that the complaint does not state facts sufficient to constitute a cause of action; and, second, that the circuit court rendered an affirmative judgement against appellants and defendant Lavin, instead of affirming the judgment of the justice. The complaint, in substance, is as follows: That the plaintiff was the duly elected, qualified, and acting sheriff of Brookings county; that an execution was duly issued' by the city justice of the city of Brookings, in an action wherein the Foley-Wads worth Implement Company, a corporation, was plaintiff, and Alexander Stapleton was defendant, by which said sheriff was required to satisfy the judgment render
The appellants contend that the complaint is insufficient, in that it does not allege that there was any money or other property capable of manual delivery belonging to the execution debtor in the hands of Lavin upon which levy was made, and that it affirmatively appears from the complaint that the levy was made solely upon the debt owing by the said Lavin to the execution debtor, Stapleton, and therefore the only right acquired by the plaintiff was the right to collect such debt from Lavin ‘‘by suit in his own name, if necessary, or by selling the same,” as provided in Section 5120, Comp. Laws. In reply to this, respondent insists that the assumption by appellants that the complaint shows that the subject of action is merely a debt, which has been garnisheed, is incorrect, and that the complaint shows that after the levy on the debt another transaction occurred, to-wit, the debt was changed from its inchoate condition into a specific fund, and deposited with appellants, with full knowledge of respondent’s rights and for his use and benefit. The authorities are not clear as to the exact legal effect of a levy of an execution upon a debt due from a person to an execution debtor.
In the early case of Embree v. Hanna, 5 Johns. 101, Chief Justice Kent, in a well-considered opinion, uses the following language: “The attachment of the debt in the hands of-the defendant fixed it there in favor of the attaching creditors. The defendant could not afterwards lawfully pay it over to the plaintiff. The attaching creditors acquired a lien upon the debt binding upon the defendant, and which the courts of all other governments, if they recognize such proceedings at all,
Mr. Shinn, in his work on Attachment and Garnishment, in section 613, uses the following language: “Garnishment does not create a lien upon effects or credits in the. same sense that attachment by direct seizure creates a lien upon property, and yet it does create alien upon the proceeds or fund to the extent that the garnishee cannot pay it, nor can the principal defendant secure it; and this lien, such as it is, takes effect from the time of service, and thereafter, where so specially provided. Garnishment creates an inchoate lien, which can only be perfected by judgment.” In the same section the learned author uses the following language: “Process of garnishment served upon the garnishee does not have the same effect of attaching the property or credits in the hands of the garnishee that a direct attachment has upon the property of the defendant taken by direct seizure. The effect of the garnishment is to make the garnishee the trustee of the money of the defendant. Perkins v. Guy, 2 Mont. 15.”
In Beamer v. Winter, 41 Kan. 596, 21 Pac. 1078, Horton, C. J., in speaking of the effect of a levy upon a debt, quotes with approval the following from Wap. Attachm. p. 341: “It is a species of seizure by notice, made by order of court, at the instigation of the plaintiff, to facilitate the execution of any judgment that may be rendered against the defendant by secur ing and preserving such property and credits of the defendant as are liable to cxeoution. It is not such a seizure as to make the serving officer the custodian of that which is seized, but rather such as to make the defendant’s debtor or his property
While, therefore, the effect of levying upon a debt due from a party to the execution debtor does not create an absolute lien, in the sense that a lien is created by the officer’s taking into his possession tangible property of the execution debtor, yet it is a lien in the sense that the plaintiff acquires aright to have the uebt due from the party to the judgment debtor applied in payment of his judgment, and in effect makes such person a trustee of the amount so due from him to the execution debtor. It would seem to follow, therefore, that when Lavin admitted that he was indebted to Stapleton in the sum of 878.22, but was in fact indebted to him for §103.15, he became a trustee of the plaintiff for that amount; and when he deposited that identical sum with Schouweiler Bros., with full notice and knowledge that the same had been levied upon, and who “received the same subject to the rights of the plaintiff therein and thereto, and well knowing that said sum so deposited with them and received by them was the said sum owing by said Thomas Lavin to said Alexander Stapleton, and was the particular fund levied upon, as aforesaid,” that the money was held by them for the use and benefit of the plaintiff.
Appellants make further objections to the complaint, and contend that the action is not one for money had and received for the use of the plaintiff, but an action in the nature of trover, for the wrongful conversion of said money. But we are in-
It will be observed that following the allegation that the defendants “wrongfully and unlawfully converted the same to their own use” is the allegation, “to which sum the plaintiff is' justly entitled under and by virtue of said levy, as aforesaid, and which sum is'now held by defendants to the use and behefit of this plaintiff.” It will be noticed that these two allegations are entirely inconsistent, and as the latter is in accord with the other allegations of the complaint, the former should be treated as surplusage and disregarded.
The summons does not aid in interpreting the pleadings. The complaint alone is to be considered in determining the de
The second contention of the appellants, that the judgment entered by the circuit .court is void, will now be considered. It appears from the record that the circuit court affirmed the judgment rendered by the city justice, which was for the sum of 8122.40, costs, and statutory fees, as follows: “It is hereby ordered and adjudged that the said judgment of the said Albert Matson, city justice, herein. * * * for the sum of 8122.40, be, and the same is hereby, in all things affirmed.” The court then adds the following: “And it is further hereby ordered and adjudged that the said plaintiff * * * have and receive from said defendants, N. A. Schouweiler and M. E. Schouweiler and Thomas Lavin, defendants herein, the said sum of $122.40, together with interest on the sum of $100.00 at 7 per cent per annum, * * * and also for his costs and disbursements upon this appeal, to be taxed by the clerk of this court and inserted herein, in the sum of $19.25, amounting in all to the sum of 8141.65.” The first part of the judgment appears to be in proper form, and is such a judgment as is authorized by Section 6136, Comp. Laws; and we see no objection to the latter part of the judgment, by which it is adjudged that plaintiff shall recover his costs in the circuit court, taxed at 819.25. But that portion of the judgment in which it is adjudged that the plaintiff is to have and recover of the defendants the sum of 8122.40, together with interest, etc., is clearly not authorized by that section. But we do not think that the addition to this
