Whipps v. Lowney, 113 P. 750

Whipps v. Lowney

113 P. 750 | Mont. | 1911

ME. JUSTICE HOLLOWAY

delivered the opinion of. the court.

In November, 1908, an order was made by the district court of Silver Bow county appointing M. D. Kelly, an attorney at law, attorney to represent certain indigent prisoners charged with felonies. Kelly accepted the appointment and in due time performed the services required of him. Before completing his services, Kelly, anticipating the amount which would be due him from the county, assigned his claim to Marco Medin, and notice of the assignment was given to the county clerk. In June, 1909, four county warrants for $50 each were drawn in favor of Kelly for his services, and the clerk noted on each the fact of the Medin assignment. During the same month, M. V. Conroy, who had theretofore recovered judgment against Kelly, caused execution to issue, placed the same in the hands of defendant Lowney, a constable, and directed him to attach any moneys due Kelly from the county. The constable served the process by giving the statutory notice of garnishment to the county clerk, who informed him of the Medin assignment. Proceedings supplemental to execution were then taken, Medin examined, and, upon such examination in the presence of the county clerk or his deputy, Medin testified that he did not have any claim whatever to or upon the money due from the county to Kelly, or to or upon the warrants which had theretofore been issued in favor of Kelly. Thereupon the county turned over to the constable the warrants, which the constable cashed; but before proceeding further he required an indemnity bond from Conroy, which was furnished, with the defendants Canty and Henderson as sureties. The constable then applied the money to the satisfaction of the Conroy judgment. This action was brought by the plaintiff against Lowney, the constable, Conroy, the judgment creditor, and the sureties upon the indemnity bond. The allegations of the complaint, so far as material now, are: That on January 18, 1909, Kelly by an instrument in writing sold, assigned, and transferred to plaintiff all moneys then due or to become due to him from the county on account of ser*550vices rendered and to be rendered by virtue of his appointment to defend the indigent prisoners; that plaintiff immediately notified the county of such assignment, and, before the moneys or warrants were turned over to the constable, plaintiff notified the constable of his claim. All of these allegations are denied in the answers which were filed. The cause was tried to the court sitting with a jury. A separate general verdict was returned in favor of the defendant Lowney, and another in favor of the other defendants; and upon these, separate judgments were rendered and entered. Separate motions for new trials' were made and denied, and plaintiff has appealed from each judgment and from each order denying him a new trial.

Upon principle this cause cannot be distinguished from the case of Merchants’ & Miners’ Bank v. Barnes, 18 Mont. 335, 56 Am. St. Rep. 586, 45 Pac. 218, 47 L. R. A. 737, and upon the authority of that ease we hold that plaintiff does not state a cause of action against any of these defendants. When the county paid over to Lowney, the constable, the money in controversy, it thereby admitted an indebtedness due from it to Kelly, which indebtedness had theretofore been secured to the judgment creditor by virtue of the attachment proceedings. Upon that admission it was the duty of the constable to take the money and apply it to the satisfaction of the Conroy judgment. In doing so the constable did no wrong, and Conroy did none in accepting the payment. If it be a fact that, by virtue of an assignment (if one was made) by Kelly to the plaintiff, the county actually owed the plaintiff, its action in paying over the money to the constable did not release it from its liability to plaintiff, or in any manner prejudice his rights; but before he can maintain an action against any of these defendants, he must show some wrong committed by them. It is not sufficient to show a wrong committed by the county, if one was in fact committed. In so far as the facts of this case differ from those in Merchants’ & Miners’ Bank v. Barnes, above, they are immaterial, and do not in any wise affect the principles of law involved. The indemnity bond was not given for the benefit *551of the plaintiff, but to protect the constable. If the county had refused to turn over the money to Lowney, and if Conroy had thereupon sued the county, a case similar to Oppenheimer v. First Nat. Bank, 20 Mont. 192, 50 Pac. 419, would have been presented. But upon the facts disclosed by this record, that ease does not have any bearing here.

"Upon the authority of Merchants’ & Miners’ Bank v. Barnes, above, the judgments and orders are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Smith concur.