124 S.E. 824 | W. Va. | 1924
The defendant, J. W. Solof, feels aggrieved by a judgment of the circuit court of Kanawha county against him, as garnishee, in favor of the plaintiff for $436.66, with interest from September 14, 1921, in an action upon suggestion under Chapter 141, Code.
On September 14, 1921, the plaintiff recovered judgment in said court against Malcolm H. White for the sum of $436.66, on which execution was issued directed to the sheriff of Kanawha county and returned by him, "No property found". A second execution, issued March 3, 1922, returnable the first Monday in May following, was accompanied by a suggestion of that date under Section 10, Chapter 141, Code, returnable to the first day of the next term of court, May 8, 1922, designating the defendant as one indebted to *198 the execution debtor, the basis of this indebtedness being a claim asserted by White against Solof for services performed under contract between them and for which a verdict of $1400.00 in favor of White had been obtained in an action pending in said court, wherein White was plaintiff and Solof was defendant.
The defendant, having been served with this suggestion March 4, 1922, appeared in answer thereto on May 8, 1922, and denied that he was indebted to the execution creditor, Malcolm H. White, or had in his custody any property belonging to him. A motion to set aside the verdict in favor of White then being pending, the suggestion was dismissed at the cost of plaintiff.
Thereafter on the same day a second suggestion was issued and served on defendant, returnable to the first day of July, 1922, but was never tried.
On June 26, 1922, the defendant paid to White $900.00 in compromise and settlement of the claim upon which the verdict of $1400.00, then pending, had been returned.
A third suggestion was issued and served on the defendant July 12, 1922, returnable to the first day of the next term of court, but was never heard. Again, November 8, 1922, another suggestion was issued and served on the defendant, returnable to the first day of the next term of court; and on January 8, 1923, the return day thereof, defendant appeared and upon a stipulation by counsel, setting forth the facts herein detailed, the court entered the judgment complained of.
Defendant assigns the following grounds of error:
(1) That the claim of indebtedness asserted by White against Solof, even after verdict finding an amount, was not personal estate within the meaning of Section 2, Chapter 141, Code, providing that, "Every writ of fieri facias shall, in addition to the effect it has under Chapter 140 of this Code, be a lien from the time it is delivered to the sheriff or other officer to be served upon all the personal estate of which the judgment debtor is possessed, or to which he is entitled, and upon all which he may acquire on or before the return day thereof, although not levied on nor capable of *199 being levied on under that Chapter; * * * and as to all property upon which a lien is hereby given the said lien shall continue after the return day of the execution."
If this contention be true, then of course the execution on the plaintiff's judgment against White, of which defendant had notice, in no way affected his right to compromise and pay to White the claim or indebtedness evidenced by the verdict. It seems to be the theory of defendant that the intangible personal property or estate to which the lien of a fieri facias attaches under the statute must be an undisputed obligation for money in the nature of a trust fund for the benefit of the execution debtor. Park v. McCauley,
"As ordinarily used in trade and business, the word *200 (credit) suggests nothing more than a chose in action, — a thing incorporeal, consisting in the right of one person to demand and recover from another a sum of money or other thing in possession. It comprises every claim or demand for money, labor, interest, or other valuable thing, due or to become due." 15 C. J. p. 1348.
Section 9, Chapter 78, Code, provides for the distribution of the "personal estate" of an intestate to the next of kin. Can it be doubted that money, or a debt of the character of the one in question, belonging to the estate would pass under this statute?
Judge GREEN, discussing the nature of property affected by the fi. fa. lien, in Swann v. Summers,
We conclude, therefore, that the execution of March 3, 1922, created a lien on the debt or claim asserted by White against Solof; and that its payment by the latter to the former after notice of such lien is no defense to this action.
(2) That the plaintiff is estopped by the order of May 8, 1922, dismissing the first suggestion.
It is sufficient answer that this defense was not specially pleaded. Res adjudicata must be properly pleaded as well as proven in order to affect pending litigation. Campe v. Board ofEducation,
(3) That this is an improper proceeding, plaintiff's remedy *201 being by action at law or suit in equity under Section 15 of Chapter 141, Code.
It is true that section provides for suit either at law or in equity, as the case may require, in the name of the officer to whom the writ was delivered, or in the name of any other officer who may be designated for the purpose by order of the court, either by the officer himself or by any person interested. We see no necessity, however, for any such suit in this matter, where the facts are undisputed, the issue being purely a question of law, so that the relief sought is properly cognizable in a proceeding like this, authorized under Sections 10, 11, 13 and 14 of said Chapter.
The judgment of the circuit court will therefore be affirmed.
Affirmed.
