28 Kan. 165 | Kan. | 1882
The only question in this case is, the extent of the liability of a garnishee. The cause was tried in the court below on an agreed statement of facts. From that agreed statement it appears that on the 14th day of January, 1881, plaintiffs commenced an action before W. E. Hazen, a justice of. the peace, against one Clarence Bryant, to recover the sum of $113.17, and op that day caused a garnishee summons in- said cause to be served on the defendant, returnable on the 25th day of January, 1881. On the 25th day of January, 1881, they recovered a judgment against Bryant in said action for the sum sued for. On the 14th day of January, the day of the service of the garnishee summons, the defendant was indebted to Bryant in the sum of $28.84, for labor theretofore performed. For a long time prior to said 14th day of January, Bryant had been in the employ of the defendant at and for the agreed compensation of $70 a month, payable at the expiration of each month. On-said 14th day of January after the service of the garnishee summons, the defendant discharged Bryant from its employ and immediately thereafter reemployed him at and for the agreed compensation of $70 a month — payable in advance, said employment to commence on the 15th day of January; and on the 15th day of January defendant paid him the sum of $70 for one month’s labor. Bryant continued in the employ of the defendant for the months following, and the single question is, whether said garnishee proceedings bound the defendant for any moneys paid to Bryant, or any liabilities incurred to him after the service of the garnishee summons and the discharge of-Bryant from its employ. The district court, to which the case was taken from the justice of the peace, held that it did not; and from that ruling the plaintiffs come to this court.
The amount in controversy in this case is small, but the question is of some importance, and is not free from difficulty. A first reading of the statute seems to sustain the plaintiffs’ claim, and yet a careful consideration of the principles which
“Sec. 39. The garnishee shall appear before the justice, in accordance with the command of the notice, and shall answer, under oath, all questions put to him touching the property of ■every description and credits of the defendant, in his possession or under his control; and he shall disclose truly the amount owing by him to the defendant, whether due or not; and in the case of a corporation, any stock therein held by or for the benefit of the defendant, at or after the service of the notice.”
“Sec. 42. If the garnishee'appear and answer, and it is ■discovered on his examination that at or after the service of the order of attachment and notice upon him die was possessed of any property of the defendant, or was indebted to him, the justice may order the delivery of such property, and the payment of the amount owing by the garnishee into court, or may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaintiff, by one or more sufficient sureties, to the effect that the amount shall be paid or the property forthcoming, as the ■court may direct.
“Sec. 43. If the garnishee fails to appear and answer, or if he appears and answers, and his disclosure is not satisfactory to the plaintiff, or if he fails to comply with the order of the justice to deliver the property and pay the money owing into court, or give the undertaking required in the preceding section, the plaintiff may proceed against him in an action, in ■his own name, as in other cases; and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the plaintiff for the amount of the property and credits of every kind, of the defendant in the possession of the garnishee, and for what shall appear to be owing by him to the defendant, and for the costs of the proceedings against the garnishee.”
“Sec. 51.'An order of attachment binds the property attached from the time of service, and the garnishee shall stand liable to the plaintiff in attachment for all property, moneys and credits in his hands, or due to him from the defendant, from the time he is served with the written notice mentioned in section thirty-seven.”
Now counsel for plaintiffs say that from the answer it appears, not merely that the defendant was indebted to Bryant at the time of the garnishment summons in the sum of $28.84, but also that after such service and before the answer day it became indebted to him in the further sum of $70, and that, by the plain language of §42 the defendant was liable to the plaintiffs for such after-accruing indebtedness; while on the other hand, defendant contends that the liability of the defendant is fixed at the time of the service of the garnishee process, that such garnishee proceedings amount to no more than an.assignment of the debtor’s then existing claim against the garnishee, and did not reach to or affect any subsequent transactions, contracts and liabilities between it and the debtor. It is obvious that this question of the garnishee’s-liability for an indebtedness may arise in at least four distinct cases: First, Where the indebtedness is owing and already due and founded upon a consideration theretofore fully paid, as for work already done or for goods already sold and delivered. Second, Where the consideration has theretofore been fully paid, but the indebtedness, though existing, is by the terms of the contract between the parties, not yet due. Third, Where the contract for the indebtedness has been previously made, but the consideration therefor has been only partially paid and discharged, as where a contract has been made for the performance of work which has been only partially performed. And Fourth, Where at the time of the service there is no indebtedness, and no contract providing for any, but- intermediate the time of the service and the time of the answer an independent contract is made and an original indebtedness created. As to the first two classes of cases, there can be no question as to the liability of the garnishee. As to the third, none as to the liability of the garnishee for the amount which would be owing to the debtor if immediately he stopped further performance and discharge of the
Most of the sections of the statute seem to recognize and ■enforce this general doctrine. Thus the preliminary affidavit in ordinary garnishee cases, § 37, must read: “ Has property of the defendant (describing the same) or credits in his possession, or is indebted to him.” While § 54a, under which this affidavit was filed, requires that it show: “That such person ■or corporation is anywise indebted to the principal defendant, •whether such indebtedness be due or not.” That is, the affidavit upon which all garnishee proceedings rest must show a subsisting and present indebtedness, and is not sufficient if it alleges that the parties in the future are to enter into a contract and to then create an indebtedness. Obviously, this ■contemplates simply a seizure and an appropriation of a present indebtedness, and not a reaching out for the seizure of a nod-existing but expected liability in the future. Sec. 51, properly read, as we think, harmonizes with this view. It attempts to define the time at which the process is effective. An attachment “binds the property from the time of service,” and the garnishee is liable “from the time he is served.” That does not mean that he is liable for any debts that may be due from him to the defendant at any time after the service, but that he is liable from the time of service for any debts that may be then due from him. Sec. 39, which provides what his answer shall contain, requires that he shall disclose truly the amount owing by him to the defendant, whether due or not. Now if this section was the only one, it might refer to the time«of the answer or to the time of service of process; but as the general doctrine in all litigation is that rights are to be determined as they existed at the time jurisdiction attaches rather than at the time the evidence of such rights is furnished, and in view also of the language of the affidavits upon which these garnishee proceedings were founded, it would seem that this language should be-understood as referring to a disclosure of the amount due at the
See also the case of Nash v. Gale, 2 Minn. 310; Davenport v. Swan, 9 Humph. 186; and Case Threshing Machine Co. v. Miracle, Sup. Ct. Wis., decided February 7, 1882, and reported in 14 Cent. L. J., p. 278. In the case from 9 Humphrey, it appears that after the service of garnishee process the garnishee purchased from the defendant a horse, but the debt thus created was held not subject to the garnishment. The cases cited by the plaintiff are with one exception none of them in point. They are all cases in which the liability was existing at the time of the service of the garnishee process, although in some of them the money was not due until sometime thereafter. The case of Silverwood v. Bellas, 8 Watts, 420, seems to be an authority sustaining the plaintiffs’ claim. In that
Counsel for defendant in error also suggest that by the terms of the new contract no debt was created. They argue that if the company had refused to pay on the 15th day of ■January, it would not have been indebted, but only liable for •damages on account .of a breach of contract; and on the other hand, that if Bryant refused to work, it would be owing him nothing by virtue of its contract, or if it had paid Bryant, he would be indebted to it. In other words, they claim that this contract created not a certain debt payable in the future, but only a contingent liability, which is not the subject of garnishment; but in the view of the case that we have already taken, it is unnecessary to consider whether this be correct or not.
The judgment of the district court will be affirmed.