162 P. 1103 | Okla. | 1917
E.C. Priboth sued B.W. Chism for the recovery of certain rents and caused an attachment to issue. Chism thereupon gave a bond with his codefendants as sureties to dissolve the attachment. The bond was conditioned to perform the judgment of the court. Priboth recovered judgment for the sum of $443.88 and $54.55 costs. Thereafter he commenced the present action on the bond. Defendants answered, setting up, in effect, payment. From their pleading and proof it appears that one Oma A. Haverson had recovered a large judgment in the district court of Tillman county against one A.F. Priboth, brother of plaintiff herein. After judgment she caused a garnishment to issue to Chism and Beard, alleging that they were indebted to A.F. Priboth, in that the moneys due from them to E.C. Priboth were in truth and in fact due to A.F. Priboth. The purport of all the allegations was that E.C. Priboth held the cause of action and subsequent judgment in his suit against Chism as a fraudulent trustee for his brother, A.F. Priboth, and in order to avoid the payment of the Haverson judgment. Meanwhile it seems that Chism had deposited $417.35 in money with Beard for the purpose of paying the judgment recovered by E.C. Priboth against Chism. Beard and Chism answered to the garnishment summons that they were nominally indebted to E.C. Priboth in the sum of $417.35, resulting from the rents involved in the suit of Priboth v. Chism, but believed that E.C. Priboth owed such amounts to A.F. Priboth. E.C. Priboth then intervened in the garnishment proceedings and claimed that Chism's debt was due him, and that he was not trustee for his brother. The whole matter was tried to the court, and judgment rendered against E.C. Priboth on his interplea and in favor of Haverson sustaining the garnishment and ordering garnishee to pay over to Haverson the money in their hands. This judgment became final.
Upon the record evidencing the above facts being introduced in the instant case, and the testimony closed, the trial court rendered judgment in favor of the defendants from which judgment plaintiff, E.C. Priboth brings the cause here for review.
The sole question is whether the defendants' pleading and proof constitute a defense. When Chism and his codefendants executed the bond here sued upon to discharge the garnishment, the appearance of the defendants was entered and the action converted from one in rem to an action in personam. Bishop-Babcock-Becker Co. v. Hyde,
We know of no reason under the weight of modern authority why a creditor of Priboth, holding a judgment recovered in the same court, as was the case at bar, could not garnish the funds due him from his debtor, Chism. Keith v. Harris,
In so far, therefore, as the trial court denied plaintiff's recovery for the difference between his, judgment and costs and the amount paid or to be paid upon the Haverson garnishment, such judgment was erroneous, and should be reversed, and in all other respects affirmed.
By the Court: It is so ordered.