441 A.2d 863 | Conn. Super. Ct. | 1982
This is a scire facias proceeding upon a foreign attachment or garnishment of money deposited and a cash bond posted previously with the *878 defendant New Haven Water Company (hereinafter Water Company) by the defendant Edward A. Biafore, a developer. The plaintiff, Joyce P. Wilber, and the defendant White-Bowman Plumbing Heating, Inc. (hereinafter White-Bowman), both creditors of the defendant Biafore, severally garnisheed the combined sum of $5807.71, the amount of refund then due Biafore from the Water Company on the deposit and bond. The respective claims of these creditors under their several garnishments are in dispute.
The material facts may be stated as follows: On October 6, 1972, the defendant Biafore deposited $24,200 with the Water Company in accordance with an "advance for construction contract" to procure the extension of a water main. Pursuant to the rules, regulations and rates governing the extension of water mains, which were appended to this contract, the Water Company agreed to "refund to the DEPOSITER [sic] the sum of $126 for each ESTABLISHED customer connected by a service line directly to said EXTENSION" within ten years of the date of execution of the contract.
Three months later, on January 19, 1973, Biafore executed a cash bond agreement by which he posted $12,000 with the Water Company, guaranteeing construction of dwellings on twenty-four lots to be supplied with water from the street water mains within five years from the installation of taps and service lines. From this bond, $500 was to be released to Biafore for each properly installed residential connection.
On various dates between August 16, 1976, and January 22, 1979, the Water Company, in accordance with these two agreements, transferred on its records and held for Biafore's account a total of $5807.71. During this same period, the plaintiff and White-Bowman, by five separate foreign attachments, *879 garnisheed these funds held by the Water Company. Moreover, between the time of Wilber's only garnishment and the time of White-Bowman's last of four garnishments, Wilber served an execution upon the Water Company, claiming not only those funds which she previously garnisheed, but also those which accrued to Biafore's account between her garnishment and execution, including those sought by an intermediate garnishment of White-Bowman.
Apportioning the $5807.71 between the two creditors pursuant to the order of their respective attachments, the trial referee concluded that White-Bowman's garnishment on September 14, 1976 secured the amount of $126. Reasoning that the plaintiff "succeeded to all of the rights which Biafore had" to the sum which was "due and owing to Biafore when the garnishment was filed with the defendant Water Company in the suit by the plaintiff against Biafore," the referee allowed Wilber to recover the sum of $4929.71, failing to allocate the balance of $5807.71.
A foreign attachment captures only those funds due the debtor in the hands of the garnishee at the time of garnishment. Drake, Suits by Attachment (6th Ed.) p. 597, 667. "A future liability is not attachable, for the conclusive reason, that it is not a debt due." Fitch v. Waite,
A special consideration raised by the parties in this case is the effect of the service or levy upon the garnishee of a post-judgment execution seeking to lien debts that became due to the judgment debtor subsequent to a garnishment in the action. On April 5, 1978, the plaintiff served an execution upon the Water Company subsequent to garnishments by her and the defendant White-Bowman and prior to the third garnishment by White-Bowman. By this execution the plaintiff claims a prior lien superior to White-Bowman's subsequent garnishment. To this she is not entitled.
Her execution is limited by law to the avails of her prior garnishment. General Statutes
The garnishments made against Biafore's funds held by the Water Company are best analyzed by reviewing their effect individually upon (a) the $24,200 cash deposit and (b) the $12,000 bond.
The further garnishment of the refund deposit by White-Bowman on June 20, 1977, captured the amount due for the water connection made on February 7, 1977, or the sum of $126. Finally, White-Bowman's garnishment on January 22, 1979, attached the amount then due and owing to Biafore for five additional connections, or the sum of $630.
In summary, of the deposit of $24,200 made to the Water Company for seriatim release upon water connection to the individual homes at $126 per home, the total sum of $1008 was attached by White-Bowman's garnishments up to January 22, 1979. Coincidentally, the same amount, $1008, was attached by Wilber's garnishment on January 4, 1977. *882
In review, of the amounts payable to Biafore pursuant to the cash bond agreement, the sum of $1500 was attached by White-Bowman's garnishments of September 14, 1976, and January 22, 1979. Wilber's garnishment of January 4, 1977, attached the sum of $2291.71.
We further find that from the refunds and repayments payable to Biafore by the Water Company when Wilber filed her garnishment of January 4, 1977, she secured the amount of $3299.71.
There is error, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiff to recover $3299.71 and for the defendant White-Bowman to recover $2508.
In this opinion SHEA and DALY, Js., concurred.