24 Neb. 435 | Neb. | 1888
This case arises upon appeal from the district court of Gage county, and out of the business failure of one Louis Tessier, a merchant tailor and dealer in gentlemen’s furnishing goods, late of that county. Several cases growing out of the same transactions have been before this court, but not involving the questions of law here presented.
The action was brought in the district court by Grace K. Reed, Ellis O. Jones, Freeman P. Kerkendall, and Charles A. Coe, partners doing business under the firm name and style of Reed, Jones & Company, Samuel Lockwood, George I. Englehart, Robert "Wemining, and John A. Johnson, partners doing business under the firm name and style of Lockwood, Englehart & Company, plaintiffs, against Joseph "C. Fletcher, Erie W. Fenton, Ada C. Fenton, The Blue "Valley Bank of Wymore, a corporation duly organized and existing under the laws of Nebraska, the Citizens Bank of Wymore, a corporation duly organized and existing under the laws of the state of Nebraska, Louis Schackman, and Clement Bane & Co., defendants.
The petition in that court alleges that, on the 7th day of March, 1883, the plaintiffs, Reed, Jones & Go., commenced an action in the district court of Gage county, Nebraska, against one Louis Tessier, who was at that time engaged in the merchandising business, to recover the sum of $348; that plaintiffs in said cause filed their affidavit and bond, and caused an order of attachment against the property of said Tessier to be issued out of said court, and placed in the hands of the sheriff of said county; that on the said day, the plaintiffs, Lockwood, Englehart & Co.,
That thereafter, and prior to the May, 1886, term of said court, the said garnishees, Ada C. Fenton and the-
That on the 3l’st day of March, 1883, five suits were com
That afterwards, on the 4th day of June, 1883, the said county court issued an order in each of the said cases, directed to the sheriff or any constable of said county, recit-' ing that, whereas on the 7th day of May, 1883, the Blue Valley Bank of "Wymore and Ada C. Fenton, of the same place, filed their answers in writing, as garnishees of Louis Tessier, in a suit in said court, wherein said Louis Tessier was defendant, Louis Shakman was plaintiff, said garnishees admitted that they held a certain stock of goods of said Louis Tessier, in the Smith store-room in Wymore, in said county, worth about $3,000, said store-room situated on lot 6, block 28, of said town of Wymore; said garnishees; further answering, say that, while said bank
That thereafter said five orders of sale were delivered to the defendant, Joseph O. Fletcher, who was then a constable in Gage county, and thereafter the defendants, the Blue Valley Bank of Wymore and Ada C. Fenton, conspiring and conniving with the said Louis Shakman and said Joseph C. Fletcher, constable, to allow the said Fletcher unlawfully to obtain possession of the surplus of goods in their hands, and disregarding the orders issued out of this court (the district court of Gage- county), did
That thereafter, after said surplus goods had been so fraudulently and unlawfully turned over to said Fletcher, constable, as aforesaid, by said defendants, the said Fletcher, pretending to act under said' orders of sale, did advertise and sell the said surplus of said goods at public auction, for the sum of $1,587.87, which sum was much less than the value of said surplus, and ’ he thereafter, on or about the third day of July, 1883, made his return to the county court of said county on said order of sale, showing the gross proceeds of said sale to be $1,589.87, and the costs of said sale to be $268.25, leaving the net proceeds of said sale $1,321.62, and said balance realized from said sale is now in the hands and possession of the said Fletcher, who claims to hold the same subject to the order of this (the district) court.
That thereafter the defendant, Louis Shakman, appeared in said county court in said cases of Louis Shakman v. Louis Tessier, and made motions in each of said cases for an order requiring said Fletcher to turn said proceeds of said sale over to him or his attorneys, to apply on his said judgments, above referred to, which said motions were, by the consideration of the said county court, each of them denied, from which decisions no appeal or writ of error was ever taken, and the said defendant, Fletcher, still holds the said net proceeds of said sale, to-wit, the sum of $1,321.61, in his possession. Plaintiffs allege that the goods formerly by the said Louis Tessier so unlawfully and fraudulently turned over, by the defendants, the Blue Valley Bank and' Ada C. Fenton, garnishees as aforesaid, to the defendant, Joseph C. Fletcher, were the same and identical goods referred to by said garnishees in the district court of Gage
The defendant, the Blue Valley Bank, answered, disclaiming any and all interest in the subject of this litigation.
Eric W. Fenton and Ada C. Fenton made a like answer and disclaimer.
The defendant, J. C. Fletcher, answered, alleging that on or about the 4th day of June, 1883, while he was a duly elected and qualified constable of Gage county, he received out of the county court of said county, five several orders of sale issued in five cases in said court, in which Louis Shakman was plaintiff and Louis Tessier was defendant; that said orders were all alike, and in the aggregate amounted to $2,448.10 and interest and costs; that each of said five orders directed and commanded the officer receiving them to take into his custody and sell and convert into money certain property therein described, and to report his doings and to hold the proceeds of said sale subject to the order of said county court; that, acting under and by virtue of the power conferred upon him by said orders, and as a constable of Gage county, as aforesaid, he proceeded to advertise said property referred to in
The said defendant in his answer denies the jurisdiction of the district -court over him in the said matters, and denies the jurisdiction of the said court to make any order in regard to the money held by him as the proceeds of said sale. That the said Louis Shakman, the plaintiff in the said five cases in the county court, has not been made a party to this action, and that he, the said Shakman, still claims the said money in the hands of defendant. Defendant denies any and all collusion or fraud on his part, and says that in all things he acted in good faith and under the order of the county court, and that if the
The defendant, Louis Shakman, also filed his answer, in which he denied all of the allegations of the petition except such as were in said answer expressly admitted. He then proceeds to set out substantially the same facts as those contained in the answer of J. C. Fletcher, in respect to the recovery by him of the five several judgments in the county court of Gage county, against said Louis Tessier, the issuing of executions upon each of the said judgments, their return unsatisfied, the issuance of summons in garnishment in said several causes against the Fentons and the Blue Valley Bank of "Wymore, the appearance and answers of said garnishees in the county court; the issuance of an order by said county court to said garnishees to hold any surplus of said property subject to the order of said county court, and that of the making of said order by said county court the attorneys for the plaintiffs had full and actual knowledge at the time; of the making by the said county court of the orders to the sheriff or any constable of said county to receive the surplus of said stock of goods and sell the same as provided by law for the benefit of said defendant. At the time said orders of sale and executions were issued, upon which said property was sold, and at the time the same was so taken, it had been abandoned by said garnishees, with the full knowledge and consent of the plaintiffs, and not claimed by any one adversely to defendant. He denies the power of the district court in the premises, and denies that the plaintiffs, or either or any of them, had any lien or legal attachment or garnishment upon the said property, the Blue Valley Bank or the Fentons, or either of them. He also denies that the said Blue Valley Bank or the said Fentons, or either of them, are
The defendants, Clement Bane & Co., also filed their answer, setting up substantially the same facts as set up in and by the answers of the other defendants herein, with the additional allegation that, on the - 9th day of March, 1883, they had issued from the district court of Gage county a summons and an order of attachment against the person and property of said Louis Tessier, which said writ of attachment was served on the property of said Tessier on the 10th day of March, 1883, at 6 p.m., it being the same property referred in plaintiffs’ petition; that said defendant thereby had acquired a valid lien upon said property, with prayer for judgment that they be paid the sum of $827.64, the amount of their judgment against said Tessier, together with costs of said suit, amounting to $34.15, etc.
There was a trial to the court, with a general finding and judgment for the plaintiffs. The defendants, Clement Bane & Co. and Louis Shakman, each severally presented motions for a new trial, which being overruled, judgment was rendered for the plaintiff. The cause comes to this court on appeal in behalf of all of the defendants.
The bill of exceptions exhibits a copy of the answer, in garnishment, of the cashier of the Blue Valley Bank of Wymore in the action of Lockwood, Englehart & Co. against Louis Tessier, in the district court; a copy of the
The affidavit of the plaintiffs’ attorney in suit of Reed, Jones & Co. against Louis Tessier is exhibited to obtain an order of garnishment against the Blue Valley Bank and Ada C. Fenton, and a copy of the original order of attachment and the sheriff’s return, that he received the order at 2:40 p.m., March 22, 1883, and not being able to come at the property of Tessier, which was claimed to be in the possession of Ada C. Fenton and the Blue Valley Bank of Wymore, on the same day, at 6 p.m., served the writ on Ada C. Fenton, personally, and the Blue Valley Bank by copy to the cashier of the bank, with copies of the order of attachment and notice in garnishment to the parties. A copy of the original order of attachment' is exhibited in the action of Lockwood, Englehart & Co. against Louis Tessier, with the sheriff’s return that he received the same
The answer of Ada C. Fenton, as garnishee, in Shakman’s action against Tessier, in the county court, May 7, 1883, stated that, “shehad a mortgage on Tessier’s stock of goods of $388.39, which stock was taken into her possession, in connection with the Blue Yalley Bank mortgage, which mortgages have been satisfied, and she now holds the goods jointly with the bank.”
The answer of the Blue Yalley Bank, as garnishee, in Shakman’s action against Tessier, in the county court, states that it had a mortgage on Tessier’s stock of goods of $1,215, which stock was taken possession of and sold, sufficient to satisfy the mortgage, and remains in possession, except the amount to satisfy the claim of Ada C. Fenton; that the remainder is worth $3,000, situate in Smith’s store-room, lot 6, block 28, in the town of Wymore, with rent due from May 1, 1883; and the further statement that, while the bank had possession, certain creditors of Tessier, Lockwood, Englehart & Co., Eeed, Jones & Co., Mack Stadler & Co., Clement Bane & Co., and possibly others, caused garnishee summons to be served on the bank, which have been answered; that the district court, whence the writs issued, has made no order of appropriation, and the bank asks protection for its interests.
A copy of the order in garnishment against Mrs. Fen-ton and the bank, in the county court, of Shackman against
A copy of the journal entry of the district court of Gage county of judgments of Reed, Jones & Co. against Tessier, with order of advertisement and sale of property attached, is exhibited.
A copy of the mandate of this court to the district court of Gage county, in the action of Reed, Jones & Co. against Tessier, commanding the lower court to carry into effect its judgment, as modified in this court, is exhibited, and also a copy of the journal entry of the lower court in said cause, finding that the Blue Valley Bank, as garnishee, had property in possession liable to the claim and costs of $579.53, with order that the garnishee pay that amount into the court within sixty days from September 24, 1884.
The defendants exhibited a copy of an execution of the county court in Shackman against Tessier, with the constable’s return of no goods found whereon to levy; also a copy of the affidavit of J. E. Cobbey, attorney for Shakman, for an order of garnishment, against Eri 'VY. Fenton, Ada C. Fenton, and the Blue Valley Bank in the action of Shakman against Tessier in the county court; also the order in garnishment of said court to said garnishees, and the sheriff’s return thereon; also copies of the affidavit of said attorney in said cause in said court, showing the perishable character ■of the goods, shown by the garnishees’ answers in the several causes of said parties, in the possession of the garnishees, belonging to the defendant, applying for an order upon the garnishees to turn the property over to the sheriff, or to some constable, to ■ be reduced to money as if taken oh execution; also the order of the county court, in compliance with the attorney’s affidavit and application, and the return of J. C. Fletcher, constable, of said order and four similar ones, in the other mentioned cases, of said parties, stating the receipt of the property from the Blue Valley Bank, its removal, its invoice, the advertisement of sale, the set
There is also in the record a copy of the recovery in the Gage county court of judgment by confession for $449.62 -debt and $1.25 costs, in favor of Shakman against Tessier, March 31, 1883, the issuance of an execution thereon, and •of summons in garnishment against Eri W. Eenton, Ada ■0. Fenton, and the Blue Valley Bank, the answers in garnishment of Ada C. Eenton and the bank, the order of the court to turn over the property to the sheriff or any constable, the issuance of an order of sale, the affidavits of the . attorney of Shakman in the five eases against Tessier that the goods held by the garnishees are perishable, the return ■•of J. O. Fletcher, constable, of the sale of the goods, the motion of Shakman for an order that the constable turn ■ over to him or his attorney the proceeds of the execution •and sale according to his return, which motion was resisted •by counsel of the Blue Valley Bank, and was overruled, the final order of the county court of December 24, 1885, •requiring the officer to turn over the net proceeds to Shakiman'or his attorney of record.
The first point raised by counsel for appellants which it '■is deemed important to discuss here, is, that the alias order of attachment in neither of the cases of Reed, Jones & Co. v. Louis Tessier, nor Lockwood, Englehart & Co. v. the same, was served upon the defendant, Tessier, and mo service of the summons or first order of attachment, in •either case, is shown by the record.' This, counsel urge, is a fatal defect in plaintiffs’ case, and they cite authorities to that effect. The objection that the summonses were ■not served on the defendant was, surely, a serious if not
Counsel for appellants make the point, which should have been given precedence of the one just considered, that the garnishment proceeding of Reed, Jones & Co. is fatalfy defective and void, for the following reasons: The statute nowhere provides for the issuance of an alias order of attachment. The so-called alias order in this case was issued on the 22d day of March, 1883. The first order was issued March 7th, 1883, returnable March 19th, upon the only affidavit and bond filed in the case, and was returned on the return day, fully satisfied by levy; no new affidavit or bond was filed, nor any reason given to justify the issuance of an alias order, etc. Counsel are mistaken in some of their facts, as well as their conclusions drawn therefrom.
The record also shows that, on the 24th day of September, 1884, it being the twentieth day of the term, the case of Reed, Jones & Co. v. said garnishees coming on to be heard, the court found the Blue Valley Bank as garnishee had property in its hands liable to the satisfaction of the claim herein, exceeding the amount due herein, which the court found to be $510.63 and costs $59.90, total $570.53.
At the risk of repetition, I will state that the record clearly shows that, pending the above proceedings on the part of Reed, Jones & Co. and Lockwood, Englehart & Co. v. Louis Tessier, in the district court, the defendant, Louis Shackman, obtained five several judgments in the county court of said county against Louis Tessier, amounting in the aggregate to about the sum of $2,448.10, besides costs. Upon which several judgments executions were issued and placed in the hands of Joseph C. Fletcher, a constable of said county of Gage, and upon which executions the said constable seized the goods of said Tessier remaining in the possession of the Blue Valley Bank after the satisfaction of the said two mortgages, and sold the same at public auction, realizing as the net proceeds of such sale the sum of $1,321.61, which he still has and holds. I purposely avoid complicating the above narrative with any reference to the garnishment proceedings on the part of Louis Shakman, as I do not see that such proceedings had any legal effect upon the rights of the parties.
By virtue of the proceedings above recited, the plaintiffs, Reed, Jones & Co., and Lockwood, Englehart & Co., respectively obtained liens in the order in which they are here named for the amounts of their respective claims, which were afterwards reduced to judgment in the said district court, upon the stock of goods of the said Louis Tessier, subject to the mortgages of the said Blue Valley Bank and Mrs. Fenton. The goods were taken in attachment by the sheriff .on the several orders of the plaintiffs in the case at bar, and ethers. The Blue Valley Bank replevied the goods by action against the sheriff. The several plaintiffs in the said attachment proceedings, to-wit, Clement Bane & Co., Reed, Jones & Co., Lockwood, Englehart & Co., Mack Stadler & Co., amj V. A. Crowley, defended said action, and had themselves substituted for the said sheriff
The garnishment proceedings of the plaintiff, Reed, Jones & Co., in the case at bar, it appears from the record, are no longer pending, there having been a final judgment rendered therein on the 24th day of September, 1884. This judgment was probably erroneous, and would have been reversed upon proper proceedings for that purpose. But the court had jurisdiction of the parties and of the subject-matter, the judgment is for the payment of money. It is probably not sustained by the evidence in the case, but that is not a sufficient reason why, in this proceeding, it may be treated as void.
The like proceeding in favor of the plaintiffs, Lockwood, Englehart & Co., has never been terminated by judgment or final order, but is still pending in the district court.
The first question to be considered at this point arises upon the consideration of the status of the goods in the possession of the Blue Valley Bank, after the service of the orders of garnishment of the plaintiffs upon the bank; and secondly, whether Eletcher, the- constable, obtained
Drake, in his valuable work on attachments, at section 251, sixth ed., says: “So it has been held that garnishment has the effect to place the property in. the garnishee’s hands in the custody of the law, and that an officer has no right after the garnishment to take the property from the garnishee.” To this he cites three cases, Scolefield v. Bradlee, 4 Martin, 252 (8 N. S.); Brasheary v. West, 7 Peters, 608; and Dennistun v. New York, C. & S. F. Co., 6 La. Ann., 782. The two first fully sustain the text; the third, being out of the library, has not been examined.
In Massachusetts the holding is, that although garnishment is an attachment of the effects in the garnishee’s hands, yet they may be attached and taken into the possession of an officer subject to the lien of the creditor who affected the garnishment. To this Drake cites the cases of Burlingame v. Bell, 16 Mass., 318; and Swett v. Brown, 5 Pick., 178.
The plaintiffs undoubtedly acquired equitable liens on the goods by virtue of their garnishment proceedings against the bank, and if the defendant, Fletcher, had the right to take the goods on the executions in favor of Shakman, he could only take them subject to the rights of the plaintiffs.
Considerable stress is laid by counsel for defendants, throughout the ease, on the fact that the plaintiffs procured no orders from the court upon the garnishees as to the disposition of the goods. From an examination of the statute,I do not find that such orders are obtainable in such cases until after final judgment against the principal debtor.
Section 226 of the code provides that, “ Final judgment shall not be rendered against the garnishee until the action against the defendant has been determined; and if in such
It appears from the record in the case of Louis Tessier v. Reed, Jones & Co., in error, on the files of this court, that final judgment was rendered in the district court in the case of Reed, Jones & Co. v. Tessier, in favor of the plaintiffs, on the 5th day of March, 1884. In the case of Lockwood, Englehart & Co. v. Tessier, final judgment was rendered on the 27th day of June, 1884. Now it appears from the record that the goods were levied on and seized by the defendant, Fletcher, on the 4th day of June, 1883, long before the rendition of judgment in favor of either of the plaintiffs against Tessier, and before, under the above provisions of statute, any order could have been made by the district court for the disposition of the said goods.
It must be held, therefore, that neither the defendant, Louis Shakman, as plaintiff in the five executions against Tessier, nor Joseph C. Fletcher, the constable who served the same by the seizure and conversion of the goods, obtained any right or title to the money received for said goods and now in the possession of said constable, as against the plaintiffs, unless the plaintiffs have lost their liens by laches. Have they done so? Neither law nor equity requires that to be done which is useless and manfestly futile. Before the plaintiffs could, in the ordinary course of practice in the district court, bring their several causes against Tessier to trial and judgment, and so be in
Again, it appears from the evidence that in the month of October, 1883, long before either of the plaintiffs obtained judgment on their claims against Tessier, the garnishee ceased to do business, and withdrew all its assets from the state, so that no proceedings of the kind contemplated would have been practicable or possibly effective in results.
As to the garnishee, Mrs. Ada C. Fenton, from a view of the whole case it is manifest that she never had possession or control of the goods, and consequently that her name never should have been used in these proceedings.
I come to the conclusion, therefore, that the plaintiffs did not lose their lien upon the goods or right to their proceeds by laches.
Having already extended this opinion to an unusual. and probably unjustifiable length, I do not discuss the other questions raised and discussed by counsel. The case presents many complicated and some doubtful questions,
Judgment affirmed.