Brocket Mercantile Co. v. Lemke

Decision Date06 February 1918
Docket Number1915
Citation166 N.W. 800,39 N.D. 37
CourtNorth Dakota Supreme Court

Appeal from the judgment and order of the District Court of Ramsey County, Honorable C. W. Buttz, Judge.

Affirmed.

Cowan & Adamson and H. S. Blood, for appellant.

Under a crop contract like the one here, the interest of Fred Lemke became garnishable as soon as the crop came into existence. He became the owner of an interest in such crops at once. Minneapolis Iron Store Co. v. Branum, 36 N.D. 355 L.R.A.1917E, 298, 162 N.W. 543; Stavens v. National Elevator Co., 36 N.D. 9, 161 N.W. 558.

Unless the affidavit in garnishment specifically states that the garnishees, two or more, are proceeded against jointly, the several garnishees shall be deemed severally proceeded against. Comp. Laws 1913, §§ 7568, 7580, 7581.

W. M Anderson, M. H. Brennan, and D. V. Brennan, for respondents (E. T. Burke, on oral argument).

In garnishment proceedings an interpleaded claimant is a party defendant to the garnishment proceedings, and such a claimant stands in the same position as the garnishee and may urge all his defenses, as well as his own. Comp. Laws 1913, § 7582.

If such a claimant has such right, then there is no apparent reason why an intervener who comes in voluntarily making claim has not the same right. Wilde v. Mahaney, 183 Mass. 455 62 L.R.A. 813, 67 N.E. 337; McMahon v. Merrick, 33 Minn. 262, 22 N.W. 543; Sutton v. Heinzle, 84 Kan. 756, 34 L.R.A.(N.S.) 238, 115 P. 560.

A case allowed to run for five years with prosecution should be dismissed. Comp. Laws 1913, § 7598.

Where the garnishee's answer discloses that no property or debt is claimed by a third person, and the plaintiff fails to have such claimant cited to litigate his claim, the garnishee is entitled to his full discharge. 20 Cyc. 1101; Donald v Nelson, 95 Ala. 111, 10 So. 317; Brunswick Gaslight Co. v. Flanagan, 88 Me. 420, 34 A. 263; Look v. Brackett, 74 Me. 347; Cram v. Shackleton, 64 N.H. 44, 5 A. 715; Mansfield v. Stevens, 31 Minn. 40, 16 N.W. 455.

The Imperial Elevator Company in their answer mentioned many claimants, giving their names and addresses, and yet for five years the plaintiff failed to bring in any such claimants. Blake v. Hubbard, 45 Mich. 1, 7 N.W. 204.

The answer of the garnishees stood undisputed and uncontested for five years, no issue thereon being joined. Spears v. Chapman, 43 Mich. 541, 5 N.W. 1038; Banning v. Sibley, 3 Minn. 389, Gil. 282; Chase v. North, 4 Minn. 381, Gil. 288.

"Funds due under a contract of employment are not subject to garnishment where the property upon which the contract is being performed is subject to a lien of laborers, employed to execute the contract, but may be retained to satisfy them." 20 Cyc. 994, and cases cited; Petrie v. Wyman, 35 N.D. 126, 159 N.W. 616.

The law indulges no presumption that the garnishee is liable, and his liability must be made affirmatively to appear in order to justify a judgment against him. 20 Cyc. 1098; Edney v. Willis, 23 Neb. 56, 36 N.W. 300; 20 Cyc. 992.

The liability or nonliability of the garnishee is determined solely with reference to the facts as they existed at the time the garnishment was served. No subsequent event can increase, diminish, or affect it. Hopson v. Dinan, 48 Mich. 612, 12 N.W. 875; Cogswell v. Mitts, 90 Mich. 356, 51 N.W. 515; Old Second Nat. Bank v. Williams, 112 Mich. 564, 71 N.W. 150; 20 Cyc. 1066; Stavens v. National Elevator Co., 36 N.D. 9, 161 N.W. 558.

A debt which is uncertain and contingent and may never become due and payable is not subject to garnishment; it is only indebtedness which is in its nature absolute and payable at some time without contingency that can be reached by such process. 20 Cyc. 1007; Comp. Laws 1913, § 7583; Edwards v. Roepke, 74 Wis. 571, 43 N.W. 554; Goode v. Barr, 64 Wis. 659, 26 N.W. 114; Drake v. Harrison, 69 Wis. 99, 2 Am. St. Rep. 717, 33 N.W. 81; Ingram v. Osborn, 70 Wis. 184, 35 N.W. 304; Mundt v. Shahow, 120 Wis. 303, 97 N.W. 897; Foster v. Singer, 69 Wis. 392, 2 Am. St. Rep. 745, 34 N.W. 395; Taylor v. Donahoe, 125 Wis. 513, 103 N.W. 1099; Hopson v. Dinan, 48 Mich. 612, 12 N.W. 875; Case v. Dewey, 55 Mich. 116, 20 N.W. 817, 21 N.W. 911; Cogswell v. Mitts, 90 Mich. 353, 51 N.W. 515; Old Second Nat. Bank v. Williams, 112 Mich. 564, 71 N.W. 150; Chicago, B. & Q. R. Co. v. Van Cleave, 52 Neb. 67, 71 N.W. 971; Edney v. Willis, 23 Neb. 56, 36 N.W. 300; Streeter v. Gleason, 120 Iowa 703, 95 N.W. 242; McConnell v. Denham, 72 Iowa 494, 34 N.W. 298; Geis v. Bechtner, 12 Minn. 279, Gil. 183.

OPINION

GRACE, J.

This is an action where the plaintiff sued the defendant, Fred Lemke, and at the same time garnished John W. Maher and the Imperial Elevator Company. The case came on for trial and resulted in a judgment for the plaintiff in the sum of $ 1,709.95.

Fred Lemke had theretofore purchased from John W. Maher certain lands in Ramsey county, North Dakota, aggregating 960 acres, for the sum of $ 19,200. The contract with reference to such purchase was in writing and was a purchase on the crop-contract plan; that is, one half of the crop raised upon the land each year, commencing with the year 1904, was to be turned over by Lemke to Maher, to be applied in reduction of the purchase price of said land and in accordance with the terms of the contract. There was a stipulation in the contract "that until the delivery of one half of the grain as aforesaid during each and every year of this contract, the legal title to, and ownership of, all of said grain raised during each and every year shall remain in the first party."

Maher admits in his affidavit of disclosure that this clause was intended as security for the purchase price of the land sold to Fred Lemke. Under the contract Fred Lemke also had the right to accelerate the payments of the purchase price. In the year 1909 there was raised upon the premises in question 9,085 bushels of wheat and 1,030 bushels and 30 pounds of barley, all of which grain was delivered to the elevator of the Imperial Elevator Company at Brocket, North Dakota, and storage tickets issued therefor in the name of John W. Maher.

The principal action was commenced on October 11, 1909, and the garnishee summons was served upon the garnishees on that date. Judgment was entered against Fred Lemke on December 17, 1912; and in September, 1914, about two years after the entry of such judgment, the plaintiff made a motion to procure an order directed against all persons mentioned in the affidavit of the Imperial Elevator Company, which is as follows:

This action having been instituted by the plaintiff, Brocket Mercantile Company, a corporation, against Fred Lemke, defendant, and the Imperial Elevator Company, a corporation, and J. W. Maher, as garnishees, and the garnishee Imperial Elevator Company having made its disclosure that there has been deposited in its elevator at Brocket, North Dakota, 9,085 bushels of wheat, 1,031 bushels and 30 pounds of barley, for which storage tickets were deposited with the clerk of the district court, and that, by the deposit of said storage tickets with the clerk of this court, it delivers the grain so stored to the clerk of said district court to be held to abide the order of the district court in this action.

And said garnishee having stated by its disclosure that it supposed that the same belonged to John W. Maher and F. W. Havener, but that since said grain was stored various disputes and differences have arisen, and that said grain was being claimed by various other parties, and that the following-named persons have served notices of large and various claims to and against said grain: The Citizens Bank of Brocket, John W. Maher, B. Kennedy, John Bartley, J. S. Robinson, S.E. Martin, Allen Leith, Roy Havener, F. W. Havener, and Fred Lemke.

That by reason thereof this garnishee is unable to determine who of the said claimants are entitled to said grain, and that it desires that the said grain be distributed as the various claimants may agree or the court may decide, and the garnishee Maher claiming to hold said property as security only;

And it further appearing that judgment has been rendered against the defendant, Fred Lemke, for the full amount of plaintiff's claim in the sum of $ 1,709.95, but that no judgment was rendered against the garnishees or either of them, and that no proceedings were had in said garnishment, and that no part of said judgment has been paid.

Now therefore, said matter having been reargued upon the application of the plaintiff, the Brocket Mercantile Company, it is hereby ordered that the following-named persons: Citizens Bank of Brocket, F. W. Havener, A. F. Moravetz, John W. Maher, B. Kennedy, John Bartley, J. S. Robinson, S.E. Martin, Allen Leith, and Roy Havener be interpleaded as defendants to such garnishee action, and that notice thereof, with a copy of said motion and a copy of this order, be served upon each of the above-named persons, and that they and each of them have thirty days after service thereof to make answer in said garnishment proceeding, and that after determination of the rights of said claimants that the garnishee Imperial Elevator Company make delivery or payment according to the rights of the various named claimants. Dated this 19th day of June, 1915.

C. W. Buttz, Judge.

This order was not served upon any of the persons mentioned in the affidavit of the Imperial Elevator Company. That Fred Lemke, one of the persons mentioned in the order of the court, intervened, as...

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