Smith v. Barclay

54 Minn. 47 | Minn. | 1893

Mitchell, J.

It having appeared that the money attached in the hands of the garnishee was claimed by Betta Barclay and Fred L. Barclay, the wife and son of the defendant William H. Barclay, the court ordered that they be brought in and made parties defendant to the action, and that plaintiff have leave to serve a “supplemental complaint” against them and the garnishee. The plaintiff thereupon served such a complaint, the substance of which was that the garnishee had in its possession a certain sum of money belonging to William H. Barclay, but which he had deposited in the name of his wife and son, for the purpose of defrauding his creditors, and putting it beyond their reach. The garnishee answered, admitting that it had the money, and averring a willingness to pay it over to whomsoever the court should decide was entitled to it.

Retta and Fred L. Barclay also answered, denying the material allegations of the supplemental complaint, and alleging generally that the money in the possession «of the garnishee belonged to them.

When the case came on for trial of this issue the defendants (Retta and Fred L. Barclay) first moved for judgment on the pleadings, and then objected to the reception of any evidence, on the ground that the “supplemental complaint” did not state a cause of action against them. The motion and objection were both overruled, and the correctness of this ruling presents the first question on this appeal.

The particular ground of the objection to the complaint proceeds upon the theory that the proceedings were in the nature of an action to set aside the transfer of this money by the judgment debtor, William H. Barclay, to his wife and son, as being in fraud of his creditors, and therefore that the complaint was defective in not alleging that plaintiff was a creditor of William H. Barclay at the time of such alleged fraudulent transfer.

Some confusion has arisen out of the informal practice adopted by counsel, apparently acting under a mistaken idea that the mode of procedure prescribed by 1878 G. S. ch. 66, § 175, applies to a case where some third person, not a party to the action, claims the money or property in the hands of the garnishee. But it will be readily seen that the provisions of that section have reference only to cases where the garnishee himself does not answer truthfully, or where he himself claims title to the money or property by conveyance or transfer that is void as to the creditors of the defendant,, and consequently that the supplemental complaint provided for is. one against the garnishee only in order to charge him. Cases where the funds or property in the hands of the garnishee are claimed by some one else are provided for and governed by section 174 of the same chapter. It provides that such claimant may, on his own application, be permitted to appear in the action, and maintain his right; and if he does not voluntarily appear notice may be given him to appear, or be barred of his claim.

The provision of the statute are not full or explicit as to the mode of procedure, but it is very clear that they do not contemplate the serving of any pleading by the plaintiff in the first instance against the claimant. All that is provided for is the service upon him of a notice to appear and maintain his right. The affirmative in maintaining this right is on him, and it is his'place to serve the first pleading in the nature of a complaint in intervention, setting up his claim, to which, if necessary, the plaintiff may answer. Donnelly v. O'Connor, 22 Minn. 309; North Star Boot & Shoe Co. v. Ladd, 32 Minn. 381, (20 N. W. Rep. 334.) See, also, McMahon v. Merrick, 33 Minn. 262, (22 N. W. Rep. 543.)

In this case counsel have just reversed the natural and proper order of pleading. The “answer” of the claimants, which should have been the first pleading, and more properly called a complaint, amounts to a mere general allegation of ownership, without indicating the source of title, while the “complaint” of plaintiff, which ought to have been an answer, amounts, in effect, to a denial of this, and an allegation that the money is the property of the original defendant, but deposited by him in the bank in the name of the claimants merely for the purpose of putting it beyond the reach of his creditors.

Under such simple issue of ownership we think a plaintiff may prove any facts tending to impeach the validity, as to him as a creditor, of any transfer of the attached property from the original defendant to the claimant; and, without deciding what he may be required to prove on the trial, we are of opinion that he is not required to allege in his answer to the claimant’s complaint, what is already alleged in his own complaint, or appears in the proceedings in the action, that he is a creditor of the defendant, and has attached the property by garnishment. The very notice to the claimant to appear and maintain his right to the garnished property implies and presupposes this. We think that it has never been the practice for the plaintiff to make any such allegations in his answer to the claimant’s complaint, and that to hold it necessary would be a surprise to the profession.

{Opinion published 55 N. W. Rep. 827.)

2. When the case was called for trial “a jury was impaneled by the court for the trial of special issues only.” This appears to have been done by the court on its own motion, but without objection by either party. No special issues or specific questions of fact were framed by the court, or suggested by counsel. After the evidence closed, the claimants asked the court to submit three specific questions of fact to the jury. This the court refused to do, and discharged the jury, and proceeded to make findings of fact and conclusions of law as on trial of a cause by the court. It is assigned as error that the claimants were thus improperly denied the right of trial by jury.

It is not necessary to decide whether they were entitled as a matter of right to a jury trial, for, if they were, we are clearly of opinion that what occurred on the trial amounted to a waiver.

At the commencement of the trial the court evidently proceeded upon the theory that it was a “court case,” but in which the court might, in its discretion, order some specific questions of fact to be tried by a jury. To this view of the matter the claimants assented by not objecting, and, after the evidence closed, they themselves proceeded on this same view' in asking that certain specific questions of fact be submitted to the jury. Having themselves acted on this theory of the law, and allowed the court to do so without objection, they cannot now be heard to assert, what they never asserted in the court below, that it was a “jury case,” and that they were entitled to a jury trial as a matter of right.

It can hardly be necessary to add that, if the case was triable by the court, if, from the developments on the trial, the judge changed his mind, and concluded that it was inexpedient to submit any specific questions to a jury, there was no error in discharging the jury and trying the case himself.

Order affirmed.