Perkins v. Guy, 2 Mont. 15

Perkins v. Guy

2 Mont. 15 | Mont. | 1873

KNOwles, J.

This is a bill of interpleader, brought by the plaintiff to compel the defendants to set np their rights, and have the same determined, to certain moneys in the possession of plaintiff.

The facts set up in the bill are substantially as follows: On the 1st day of November, 1871, ~W. D. Pobinson recovered a judgment against the plaintiff in the district court of Gallatin county, for the sum of $181.50, and costs of suit. On the 2d day of November of the same year, the defendants, Fridley, Hopping and McKenzie, each commenced suit against Pobin-son, and, as auxiliary thereto, had issued a writ of attachment, and a garnishee process was served upon the plaintiff, Perkins, on the 3d day of said month, warning him not to pay the said judgment to Pobinson. These last suits were commenced in the probate court of the said county of Gallatin. Oh the last-named day, the defendant made answer to the said garnishee process, that he was indebted in the sum aforesaid upon the said judgment. On the 4th day of the said November, Pobinson caused an execution to issue out of the office of the clerk of the district court for Gallatin county, upon said judgment. On the 13th day of said month, the sheriff of said county, the defendant Guy, by virtue of this execution, levied upon the property of the said Perkins, to satisfy the same. After the issuing of the said execu*18tion, tbe defendants, Page and Coleman, attorneys for tlie said Pobinson, gave a written notice to Perkins that they had an attorney’s lien upon said judgment, in favor of Pobinson, to the amount of $150; and forbade the plaintiff from paying that amount of said judgment to Pobinson, or to the sheriff, Guy, or to Pridley, Hopping and McKenzie. Before the filing of this bill, the said attaching creditors had obtained judgment in the probate court against Pobinson, in the suits aforesaid, and were seeking to enforce the same by virtue of the said garnishments against the plaintiff.

Under this state of facts was the plaintiff entitled to maintain this action ? The court below held that he was not, and this ruling is assigned as error. Whether or not he could maintain this action depends upon whether the defendants, Pridley, Hopping and McKenzie, could garnishee the judgment Pobinson had recovered against Perkins. If they could, then this action was properly brought; if not, then the ruling of the court below was correct, and the bill properly dismissed.

Section 124, page 157, of the Practice Act, which was in force at the date of the service of the aforesaid writ of attachment, provides that “ The rights or shares' which the defendant may have in the stock of any corporation or company, together with the interest and profits thereon, and all debts due such defendant,” may be attached.

The fifth subdivision of section 125 of the same act, provides how debts may be attached. Section 127 of this act provides that from the date of the service of a copy of the writ, and notice provided for in the aforesaid fifth subdivision of section 125, upon the debtor of the defendant, unless he pay such debt to the sheriff, the said debtor shall be liable to the plaintiff for the amount of such debt until the attachment be discharged, or any judgment recovered by the plaintiff be satisfied. Section 130 of the said act provides that “Debts and credits attached may be collected by him (that is the sheriff), if the same can be done without suit. The sheriff’s receipt shall be a sufficient discharge for the amount paid.”

Section 208 of the Practice Act of 1867 is as follows:

“Satisfaction of a judgment may be entered in the clerk’s *19docket, upon an execution returned satisfied, or upon an acknowledgment of satisfaction, filed with tbe clerk, made in tbe manner of an acknowledgment of a conveyance of real property by tbe judgment creditor, or witbin one year after tbe judgment by tbe attorney, unless a revocation of bis authority be previously filed. Whenever judgment shall be satisfied in fact, otherwise than upon execution, it shall be tbe duty of tbe party or attorney to give such acknowledgment; and, upon motion, tbe court may compel it, or may order tbe entry of satisfaction to be made without it.”

Between this section and tbe clause quoted above from section 130, if a judgment can be attached there is presented a conflict, for this section provides bow a judgment may be satisfied. But if tbe sheriff’s receipt to a person, who has paid him a judgment debt, which has been attached, is a satisfaction of the same, then there is another manner of satisfying a judgment than that prescribed in section 208.

Again, let us examine this clause of section 130: “Debts and credits attached may be collected by him (that is the sheriff), if the same can be done without suit.” Here is an intimation that the debts that may be attached may be collected by suit.

How is a judgment to be collected by suit ? Again, section 127 provides that, after the service of the writ and notice, the person garnisheed shall be liable to the plaintiff for any debt he owes the defendant. How is the plaintiff to enforce this liability ? He certainly cannot recover another judgment against the garnishee, for the demand- is a judgment already. There is no provision of law for the plaintiff in the attachment suit, or the sheriff stepping into the shoes of the defendant in the attachment suit, and ordering execution to issue on a judgment in his favor. There is doubt enough thrown upon the intention of the legislative assembly in the language used by the different-sections of the statute above referred to, to demand of a court a construction of the clause, “ all debts due such defendant,” and ascertain whether it embraces judgment debts. In construing a statute, the intention of the legislative assembly is the object sought. In arriving at this, a court is not confined to the exact words of a statute : “ A thing which is within the letter of the statute is not within the *20statute unless it be within the intention of its makers.” People v. Utica Ins. Co., 15 Johns. 358-380.

As it appears that our system of attachment laws in the United States sprang from what is known as the custom of London in attaching debts, under that custom a judgment debt could not be attached.

In construing a statute, the court may inquire what was the object the legislative assembly sought.

The process by which the debt of a debtor can be attached is usually called a garnishment. This term implies a warning to the person indebted to the defendant not to pay the money he is owing over to him. In New England this process is termed the trustee process. The garnishee process “ is, in effect, a suit by . the defendant, in the plaintiff’s name, against the garnishee, without reference to the defendant’s concurrence, and, indeed, in opposition to his will.” Drake on Attachment, § 452.

It is very evident that the effect of a garnishment is to make the garnishee a trustee of, the money due the defendant, for the benefit of the plaintiff in the attachment suit. This is the object the legislative assembly intended to effect. But how is a party to be made a trustee of funds over which he has no control ? He owes the debt, but it is in the custody of the law. It is a judgment, and his property against his will may be taken upon execution to satisfy the same. It is not in his power to hold this money as a trustee.

It is a familiar legal maxim that “ The law does not seek to compel a man to do that which he cannot possibly perform.” The object of the legislative assembly to make the garnishee a trustee for the plaintiff in the attachment suit cannot then be effected, because it requires of the garnishee an impossibility. Neither can the remedy against the garnishee be in the nature of a suit. The debt is already a judgment, and two judgments cannot be entered for the same debt in different courts, when the court is apprised that the claim is already a judgment in the same jurisdiction.

It would not be uninstructive to learn how other courts have construed similar statutes. The courts of Connecticut, Pennsylvania, Delaware, Alabama and Mississippi, under, what I suppose, *21similar statutes, bare held that a judgment could be attached. In Connecticut, the court recognized the hardship that would be inflicted upon the garnishee from their ruling, and intimated that he might protect himself by an action in chancery similar to this. If a judgment debt can be garnished, the plaintiff in the attachment suit would not be a necessary party. His rights the garnishee knows. A court of chancery cannot change them. The only necessary parties would be the sheriff or clerk of the court, and the defendant in the attachment suit in such an action, enjoining these parties from collecting this judgment.

But, unless it could be shown that the garnishee was liable to suffer great and irreparable injury, this could not be done. If the defendant in the attachment suit was not insolvent, how could he do this? If the defendant in the attachment suit was solvent, we would witness, under our statute, the spectacle of a garnishee being compelled to pay a debt twice and have left an action against his original creditor to make himself whole. The effect of the construction of a law is a legitimate object for a court to consider. Surely, a court ought not to give a construction to a law that would have this effect, unless there is no legal way to escape it. A debtor ought to have some rights which a legislative assembly should respect. A construction of this law that would have this effect would not be consistent with any reasonable intention on the part of the legislative assembly.' Again, the effect of holding that a judgment should be subject to attachment would present a conflict of jurisdiction, and allow one court to interfere with the judgments and process of another court.

In opposition to the decisions of the courts above referred to, we have the courts of New Hampshire, Massachusetts, New Jersey, Arkansas, Tennessee, the circuit court of the United States, and a decision of the supreme court of the United States, which, in principle, establishes this doctrine. This latter decision is the case of Wallace v. M'Connell, 13 Pet. 136. This case decides that, after the commencement in the United States district court of a suit, a debt cannot be garnished. Certainly, if a debt, after the commencement of a suit, cannot be garnished, much less can a judgment.' This decision is binding upon us. In every State in the Union, where the question has been presented, except in *22Maryland, it bas been beld that a promissory note not due could not be attached by the garnishee process. Any other class of debts upon which an action may be brought, whether due or not, may be attached by this process. The only reason for exempting a promissory note not due is the peculiar class of the obligation. A debt evidenced by a promissory note not due is as much under the control of the payee thereof as a judgment debt is under the control 1 of ■ the person liable thereon. “ All debts ” embraces debts evidenced by a promissory note, whether due or not, as well as judgments. If courts are at liberty to so construe this statute as to exempt a debt evidenced by a promissory note from the operation of the statute, a. court ought to be at liberty to say that it did not embrace judgments; that the only debts that were included within the operation of that statute would be all those debts upon which the money payable thereon could be held by the garnishee;, as a trustee of the plaintiff in the attachment suit, and over which he had control.

Eor these reasons we think the court below committed no error.

The judgment of the court below is, therefore, affirmed, with costs.

Judgment affirmed.