57 Mich. 540 | Mich. | 1885
On the 7th day of March, 1884, the defendant was indebted on an open account for goods sold and delivered to the firm of Rothschild & Sittig, composed of Raphael Rothschild and Charles Sittig, in the sum of $164.15. On that day Rothschild & Sittig assigned the account to the plaintiff. March 3,1884, Leopold Erstein and Marx Erstein, simple contract creditors of Rothschild & Sittig, commenced a suit by attachment against them in the Federal court in Detroit, and on the 17th of June, 1884, recovered judgment in their suit for $686.62.
Prior to the rendition of this judgment, and on the 25th day of April, 1884, they caused garnishee proceedings to be commenced against the defendant, Nathan Burton, who was served the same day with the writ of garnishment, and on the 21st day of May thereafter, defendant filed a disclosure admitting the indebtedness on the day of the service of the writ, but states that previous thereto he was notified of the assignment of such indebtedness to plaintiff by the assignors,, and that if such assignment wa^ valid, he did not, on the day the writ of garnishment was issued, owe to the firm of Rothschild'& Sittig any sum of money whatever. On the same day, after the disclosure was filed, the attorneys for the plaintiffs in attachment filed in the United States circuit court-
On the 14th day of June the circuit court of the United States made an order in said suit that Amelia Kothschild, the plaintiff in this case, “ do appear in said court and maintain her rights under the assignment to her in such manner and form as she may deem proper.” She did not' appear, and July 5th the statutory issue was tried in the Federal court, and judgment rendered against the garnishee defendant for the sum of $165.14, and further directed that when the money was collected it should be paid into court, subject to the further order of the court.
The suit in this case was commenced in May, 1884, before a justice of the peace in Detroit to recover the indebtedness assigned to her by Kothschild & Sittig. Before the justice the defendant set up in defense by plea in abatement the proceedings instituted against him in the garnishee suit, set forth down to the time of the commencement of this suit. The plaintiff filed a demurrer to the plea before the justice, which was sustained. The defendant then pleaded the general issue, and upon the trial the justice rendered judgment for the plaintiff. The case was then taken to the circuit court for the county of Wayne by appeal. The defendant then filed a plea puis darrein, setting up the entire procedings to judgment had against him in the United States court, as herein-before set forth, and the payment of the money into court as required in said judgment, as a bar to the plaintiff’s suit. A trial of the case was then had before a jury, who, under the instructions of court, returned a verdict for the plaintiff, and the case is before us on error. No additional facts to those above stated appeared upon the trial.
It is not surprising that courts have felt it their duty to pronounce the .garnishee proceeding a harsh one, and restrict it to cases within the letter of the law. This does not properly characterize its effect in certain cases, under certain of its provisions. An actual fraud upon the rights of the garnishee is not unfrequently the result of some provisions of the statute, and it is to be hoped that this seriously •oppressive feature may at an early day receive the remedial -attention which alone can be given by the Legislature of our ■ State, that it may be so modified that a poor debtor, who is ready and willing to pay his debt when due, may be permitted so to do without being subjected to the vexation and ■expense of two or three lawsuits, and then be obliged to pay it a second time. 5
Counsel for plaintiff in this ease claims that the section of the statute under which the defendant insists the Federal -court obtained jurisdiction (How. Stat. §'8056) of the plaintiff is unconstitutional; that even though it be held ■constitutional it does not apply, if at all, to money indebtedness, but to goods and chattels only within the control ■or custody of plaintiff; that in no event can the plaintiff’s rights be determined in any other manner than by a ■court in which he may have his case tried by jury, and the
There is no question but that the Federal court obtained jurisdiction, and rendered a valid judgment in the original .-suit, or, at least, that is not questioned in this record; and if we concurred that the court acquired the right under its writ of garnishment to take further proceedings, and bring before it the plaintiff to have her right to the claimed indebtedness investigated and legally determined, it could only
It is impossible, in my judgment, for this Court to relieve this defendant from the possible consequences of an affirmance of the judgment in this case. That relief must be obtained, if at all, in the Federal court, which I have no doubt would furnish any needed remedy in its power to avoid oppression resulting from the enforcement of its orders, judgments or decrees. However this may be, our duty seems to' me plain and imperative, and
The judgment at the circuit should be affirmed.
I think Mrs. Rothschild was bound by the proceedings in the Federal court. That court had possession of the principal controversy, and it was entirely within its jurisdiction to take cognizance of controversies like the one before us, which were collateral to the main suit. Such cognizance was taken and Mrs. Rothschild notified.