Barr v. Warner

• Decision Date: 03 December 1900
• Parties: BARR v. WARNER.
• Court: Oregon Supreme Court

62 P. 899

38 Or. 109

BARR v. WARNER.

Supreme Court of Oregon

December 3, 1900

Appeal from circuit court, Linn county; George H. Burnett, Judge.

Action by W.B. Barr against J.A. Warner for taking and injuring personal property. From a judgment in favor of plaintiff defendant appeals. Reversed.

This is an action to recover the reasonable value of a solar compass alleged to have been loaned to the defendant, who broke and neglected to return it. It is averred in the answer that after this action was commenced the parties agreed that the compensation in damages for such loss should be the sum of $93, and that upon the payment thereof, on or before a given date, the action would be dismissed; that prior to the day so appointed the sum agreed upon was garnished in the defendant's hands to satisfy an execution issued out of the circuit court for Linn county, Or., on a judgment rendered June 23, 1896, against E.J. O'Connor and the plaintiff herein, partners as O'Connor & Barr, for the sum of $243.75, attorney fees, and costs and disbursements in an action wherein Henry Lyons was plaintiff, and that in pursuance thereof the sum of $93 had been paid to the sheriff of said county. A reply having put in issue the allegations of new matter in the answer, a trial was had at which the defendant, having laid a proper foundation therefor, offered in evidence said execution, and the return indorsed thereon which showed that the sheriff served a certified copy thereof and a notice of garnishment on the defendant herein, to the effect that all debts due or owing from him to said O'Connor & Barr, or either of them, were attached by virtue of a writ of attachment issued out of said court in said action, and that in pursuance thereof there had been collected thereon the sum of $93, whereupon the writ was returned satisfied pro tanto. The court, over the defendant's objection and exception, rejected the evidence so offered, and instructed the jury to find for the plaintiff, for whom a verdict was returned in the sum of $93 and, a judgment having been rendered thereon, the defendant appeals.

A.M. Cannon, for appellant.

J.R. Wyatt, for respondent.

MOORE J. (after stating the facts).

The question presented for consideration is whether the notice of garnishment which stated that the debt due from the defendant to the plaintiff herein was attached by virtue of a writ of attachment, instead of stating that it was levied on by virtue of a writ of execution, was sufficient to render the defendant personally liable to respond to the judgment creditor in the writ to the extent of such debt. A garnishee may waive many irregularities in the notice of garnishment, and by his certificate or answer in response thereto submit himself to the jurisdiction of the court, and thus become in privity with, and in effect a party to, the judgment which has been or may be rendered against his creditor (Rood, Garnish. § 267; Carter v. Koshland, 12 Or. 492, 8 P. 556; Flournoy v. Rutledge, 73 Ga. 735; Bank v. Titsworth, 73 Ill. 591; Wellover v. Soule, 30 Mich. 481; Howland v. Jeuel, 55 Minn. 102, 56 N.W. 581; Wile v. Cohn [C.C.] 63 F. 759); but, while a garnishee may waive jurisdiction of his person, he cannot, by voluntarily appearing, waive the defendant's rights, or substitute the latter's creditor for his own, because that relates to the jurisdiction of the subject- matter, which can be acquired only in the manner prescribed by law (Drake, Attachm. [ 6th Ed.]§ 451b; Case v. Noyes, 16 Or. 329, 19 P. 104; Smith v. Conrad, 23 Or. 206, 31 P. 398; Hebel v. Insurance Co., 33 Mich. 400; Altona v. Dabney [Or.] 62 P. 521; Haley v. Railroad Co., 80 Mo. 112; Nelson v. Sanborn, 64 N.H. 310, 9 A. 721; Steen v. Norton, 45 Wis. 412). The statute provides, in effect, that the personal property of a defendant in an action in the possession of, or a debt due him from, another, is attached by leaving with the latter a certified copy of the writ of attachment and a notice specifying the property attached. Hill's Ann.Laws Or. § 149, subd. 3. If judgment be recovered by the plaintiff, and it shall appear that property has been attached in the action, and has not been sold as perishable or discharged from the attachment, the court shall order it sold to satisfy the plaintiff's demands, and, if execution issue thereon, the sheriff shall apply the property attached by him, or the proceeds thereon, upon the execution. Id. § 157.

It has been held, though not involved herein, that the service of a garnishee notice creates an equitable lien upon property of the defendant in the hands of the garnishee, entitling the plaintiff to hold such property for the satisfaction of his claim against such defendant, and to follow it into the hands of those who may purchase the same of the garnishee with notice of the situation. Milling Co. v. Boynton, 87 Wis. 619, 59 N.W. 132; Morawetz v. Insurance Office, 96 Wis. 175, 71 N.W. 109; Maxwell v. Bank (Wis.) 77 N.W. 149. The service of such a notice, however, upon a person indebted to the defendant, in an action, does not establish a lien in favor of the creditor upon the money in the hands of the garnishee, but creates a personal liability only to respond to any judgment that may be recovered against such defendant to the extent of the debt due the latter. Bigelow v. Andress, 31 Ill. 322; Gregg v. Savage, 51...