38 Cal. 611 | Cal. | 1869
Lead Opinion
This is an action by an attaching creditor against a garnishee founded upon the one hundred and twenty-seventh section of the Practice Act.
From the facts, as agreed upon by counsel, it appears that the plaintiff, on the 31st of December, 1866, commenced an attachment suit against one J. R. Hardenbergh, and garnisheed the defendant by serving upon him a copy of the attachment, and notifying him in writing that any debts due from him to Hardenbergh, and any credits or other personal property in his hands belonging to Hardenbergh, were attached at the suit of plaintiff. That at the time the attachment was served upon the defendant, he was the creditor of a copartnership concern, composed of said Hardenbergh and one Dyer, to a large amount, and held, as collateral security, notes to a much larger amount due to the firm from Pearson & Getchell. That after the garnishment, the defendant accepted an assignment, by Hardenbergh & Dyer, of the notes held by him as security, in trust for himself and certain other creditors of the firm of Hardenbergh & Dyer,
The statute under which this action has been brought provides that, upon service of the attachment, a garnishee shall be liable to the plaintiff in the attachment for such debts as may be due from him to the defendant in the attachment, and for the amount of any credits or other personal property that may be in his hands or under his control, belonging to the defendant in the attachment, until the attachment is discharged, or the judgment of the plaintiff in the attachment is satisfied, unless he pays such debts and transfers such credits and other personal property to the Sheriff. If the garnishee does not do this he may be required to attend before the Court from which the attachment has been issued, or the Judge thereof, or a referee appointed by the Court or Judge, and answer upon oath concerning debts due from him to the defendant in the attachment, and credits or other personal properly in his possession or under his control which belong to the defendant in the attachment. The defendant may, also, be required to attend at the same time and place, and answer upon oath in relation to moneys due him from the garnishee, and to credits and other personal property in the possession or under the control of the garnishee which belong to him. If, upon such examination, it appear that the garnishee has credits or other personal property in his possession or control which belong to the defendant in the
The notes of Pearson & Getchell were credits of the firm of Hardenbérgh & Dyer, in the control of the defendant, and, as such, were subject to seizure and sale upon, execution, the same as any other partnership property would have been at the time the plaintiff’s attachment was served. (Davis v. Mitchell, 34 Cal. 81.) Had the plaintiff been a creditor of the firm, he would have had no difficulty in reaching those notes by attachment, and subjecting them to the satisfaction of his claim against the firm. Under the provisions of the statute, to which we have referred, he would have been entitled to summon the defendant before the Court, or Judge, or referee, and, upon its appearing that he held these notes as collateral, the Court or Judge could have caused him to surrender them to the plaintiff, upon being paid the amount of his own note against the firm, and, thereupon, to transfer the latter also; or, after obtaining his judgment against the firm, he could have brought an action against the defendant and accomplished the same result.
(Roberts v. Landerker, supra.) The lien of the plaintiff obtained by his attachment would have not only fastened itself upon the notes, but would have transferred itself to the money due upon them, when collected by the defendant. Having collected the notes, the defendant could have applied the money, so far as necessary, to the payment of his own note against the firm, but he would have been bound to pay
It is settled in this State that joint or partnership property can be seized under an execution against one of the joint owners or partners, for his individual or separate debt, and sold; and that the purchaser will acquire by his purchase the interest of the debtor partner; but that the rights of the several partners and the creditors of the firm are paramount to the claims of the creditors of the members of the firm, in their individual or separate capacity; and hence, that the interest which passes by the sale is the interest of the debtor partner in the residuum of the partnership property after the settlement of the partnership debts; that the interest may be ascertained by suit before the sale, in the name of the plaintiff in the execution, or, with his consent, in the name of the Sheriff, who, by his seizure, acquires a special property in. the goods, or, after the sale, in a suit by the purchaser against the other partners, or by the latter against him. (Jones v. Thompson, 12 Cal. 198.)
It follows that by the service of his attachment upon the defendant the plaintiff secured a lien upon the interest of Hardenbergh in the notes, and the money thereafter collected on them, subject to the special lien of the defendant, and the paramount lien of the other partner, Dyer, and the other creditors of the firm; and that the defendant having converted the funds collected by him upon those notes, so far as they were in excess of his own debt, has made himself liable, under the statute, to the plaintiff for the amount of Hardenbergh’s interest therein, to the extent of the plaintiff’s judgment against Hardenbergh, and to that extent the plaintiff is entitled to recover. The agreed case, however, instead of showing that there is something coming to Hardenbergh
That such are the relative rights of the creditors of the firm, the partners and the creditors of the partners, in their separate capacity, is not, as we understand them, denied by counsel for the plaintiff, but it is insisted in effect that the defendant cannot shield himself behind the paramount rights of the other partner and the other creditors of the firm; that he had no right, as against the plaintiff, to look after the interests of Dyer or the other creditors of the firm; or, in other words, erect himself into a Court for the settlement of partnership affairs, that, on the' contrary, he was bound, after paying his own claim, to turn over the remainder of the funds to the Sheriff, and allow Dyer and the other preditors to assert their paramount rights by suit against the plaintiff if they desired to do so.
By this argument counsel concede that if the funds had remained in the hands, of the defendant at the time this action was brought, and Dyer, as partner, and the parties named in the assignment from Hardenbergh & Dyer to the defendant as creditors, had intervened, as they might have done, the Court would have caused the funds to be paid out precisely as the defendant has paid them. Can the defendant be held liable for doing, at the request of Dyer and the other creditors, what the Court would have compelled him to do at their suit, if he had not done it at their request? We think not. The defendant did not, as suggested by counsel, act in this matter as a volunteer. He acted upon request, and did nothing but what the law, through the Courts, would have coerced him to do.
Judgment affirmed. . .
If it had appeared from the agreed facts that the firm of Hardenbergh & Dyer had no other copartnership property than the notes of Pearson & Gretchell, which were assigned
Concurrence Opinion
I concur in the views and the conclusion of Justice Sanderson. I do not think the fact that it does not appear whether the property in question was all the partnership property or not affects the question. Tevis was the trustee of the firm itself, as well as of the creditors for whose benefit the partnership property in controversy was assigned to him, and as such, until the affairs of the concern are settled, as much entitled to the possession of the property as any individual creditor of Hardenbergh could be. Even if a sale had taken place of Hardenbergh’s interest in the said partnership property, and it had been purchased by Robinson, Robinson could, in any event, only get an undivided interest in the residuum of the partnership property after the settlement of its affairs and payment of its debts; and whether the concern is solvent or insolvent cannot affect the question. But in this case Robinson was not even in that position. No sale had yet taken place, and he had only acquired a lien on Hardenbergh’s interest in the property. To enable plaintiff to recover, the burden is on him to show