| Cal. | Jul 1, 1858
The plaintiffs brought two suits by attachment against John Hertzinger, and served copies of the writs upon the defendant Landecker, with a notice that all debts owing by him to Hertzinger, and all other personal property in his possession, or under his control, belonging to the defendant in the attachment-suits, were attached in pursuance of said writs. The plaintiffs pursued these suits against Hertzinger to judgments, upon which executions were issued, and returned no property found. The plaintiffs then brought this suit against Landecker, and alleged in their complaint that at the time of the garnishment the defendant had in his possession goods of Hertzinger, of the value of five thousand dollars, which goods he afterwards fraudulently disposed of, and converted the proceeds to his own use. To this complaint the defendant demurred, the demurrer was sustained, and the plaintiffs appealed.
The facts stated in the complaint being taken as true, the only question is whether they can constitute a cause of action in this form. The defendant was not brought before the Court or Judge under the provisions of the 128th section of the Code; and his counsel take the ground that no suit can be brought against him until he is examined, under oath, respecting the alleged property of the defendant in the two attachment-suits; and that after such examination, had such been had, the plaintiffs could only proceed under sections 241-2-3-4 of the Code, in reference to proceedings supplementary to the execution.
It is well settled that proceedings by attachment are statutory and special, and must be strictly pursued. So far, then, as the Attachment Law affords the plaintiffs a remedy, they were bound to pursue it. Having once invoked the stringent provisions in reference to attachments, the plaintiffs could not resort to other remedies to the prejudice of defendant, so long as they relied upon their attachment-lien.
But, while the provisions of the code in reference to this rem
The 127th section makes the garnishee liable to the plaintiff in the attachment-suit for the amount of such property, unless the same be delivered up or transferred to the sheriff. Under the provisions of this section, the garnishee may protect himself from all further liability by delivering the property to the sheriff. This is a right which may be voluntarily exercised by the garnishee. If he delivers to the sheriff any property, he cannot be made further responsible for the property delivered. But the provisions of the 128th section were intended for the security of the plaintiff, who may cause the garnishee to appear and answer under oath; and the Court or Judge may require the delivery of the property to the sheriff. The plaintiff may not be willing to trust to the personal responsibility of the garnishee, pending the attachment proceedings, and may have the best reasons for demanding the delivery of the property to the sheriff. We cannot see, however, that this section was intended to confer a privilege upon the garnishee. The privilege of examination on oath is for the security of the plaintiff and not of the garnishee. If the statement of the garnishee constituted the measure and limit of his liability, then he would have the right to insist upon it, as a condition precedent to any suit against him.
If these views be correct, it follows that the plaintiff may or may not, at his election, require the garnishee to appear and answer on oath; and that the liability of the garnishee will not be affected by the failure of the plaintiff to take such a step. If he is willing to rely upon the responsibility of the garnishee and upon other testimony to prove the facts as to the property, he has the right to do so, without releasing the garnishee.
The liability of Landecker for the value of the property under his control could not have been destroyed by the failure of the plaintiffs to examine him on oath: the question arises, how is that liability to be enforced ? The counsel of the defendant insist that it can only be done under the provisions of the Code in reference to proceedings supplementary to the execution. The 241st section provides that after the issuing or return of an execution, any person owing the defendant in the execution, or having property of his in possession, may be compelled, by order, to appear before the Judge or referee, and answer concerning the same. If the person claim the property, the Court or Judge may authorize the plaintiff in the execution to bring a suit against the claimant. (§ 244.)
There is nothing in the chapter concerning attachments that refers to these sections, and nothing in the proceedings supple- ■ mentary to the execution that properly applies to the peculiar circumstances of this case. The liability of the defendant com
The proceedings supplementary to the execution have another object in view. They seek to subject the property itself to sale under execution, or the debt to collection. Under the provisions of the two hundred and forty-first section, the plaintiff must satisfy the Judge, by affidavit or otherwise, that the person has property of the execution-debtor or is indebted to him. The plaintiffs in this case could not make affidavit, at the time they issued their execution, that the garnishee then had property in his hands belonging to the execution-debtor j because before that time the property had been disposed of to others. Mor could they state that Landecker was then indebted to Hertzinger, for the reason that Landecker’s liability, under section one hundred and twenty-seven, was direct to the plaintiffs. The chapter relating to the writ of attachment provided no specific remedy; and the remedy by proceedings supplementary could not reach the peculiar state of the case.
If it be true, as alleged, that defendant fraudulently disposed of the goods, the plaintiffs could have no object in his examination on oath. They did not want his testimony, and could not expect to obtain any admission against him. The liability of defendant being direct to plaintiffs for the value of the goods, the defendant had no right to give his testimony, unless required by the plaintiffs. The law did not require the plaintiffs to do an idle thing.
If a statute give a particular remedy in conferring a new right, then the particular remedy must be pursued. (1 Ch. Plea., 142.) But, in this ease, a new right was created, but no practicable remedy prescribed. This being so, a suit in the form adopted by the plaintiffs is the most direct and concise. Under it the defendant can have ample opportunity to make his defence. If the facts turn out upon the trial to be true, as alleged, then he should be liable to plaintiffs for the value of the property.
Judgment reversed, and cause remanded for further proceedings.