Williams v. Pomeroy

27 Minn. 85 | Minn. | 1880

Gilfillan, C. J.

In an action against C. B. Russell, this plaintiff garnished the railroad company, and on the disclosure it appeared that the company owed for one month’s services of defendant, and enough was disclosed to suggest, though not to prove, that the debt had been assigned to Pomeroy, whereupon the court denied a motion of plaintiff for judgment, and then, on plaintiff’s motion, adjourned the future hearing to give an opportunity to plaintiff to give Pomeroy notice to appear and be joined as a party. At the adjourned day Pomeroy appeared, set forth his claim to the debt by affidavit, and asked to be made a party and to assert his claim. No formal order was made admitting him, as there ought to have been, but the court and the parties proceeded as though he had been properly admitted. He was permitted, without objection, to assert his claim by evidence, and the plaintiff treated him as a party, by inserting his name in the title in the subsequent proceedings. It is too late now to object that there was no order admitting him.

No error appears in the denial of plaintiff’s motion for judgment, for it does not appear from the case that when it was made the disclosure was closed.

The court below finds as a fact, and the evidence sustains the finding, that prior to the service of the garnishee summons, the debt from the railroad company to the defendant had been assigned by the defendant to Pomeroy. That being so, of course the plaintiff could not reach it by the garnishee proceedings; for if, in fact, the debt then belonged to some one else than the defendant, and that fact appeared from the disclosure, it could not be appropriated to payment of plaintiff’s claim, whether the garnishee had notice of the assignment or not.

Order affirmed.