Coty v. Cogswell

• Decision Date: 15 October 1935
• Docket Number: 7395.
• Citation: 50 P.2d 249,100 Mont. 496
• Parties: COTY v. COGSWELL et al.
• Court: Montana Supreme Court

50 P.2d 249

100 Mont. 496

COTY v. COGSWELL et al.

No. 7395.

Supreme Court of Montana

October 15, 1935

Appeal from First Judicial District Court, Lewis and Clark County A. J. Horsky, Judge.

Action by Mae M. Coty against W. F. Cogswell and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

C. A Spaulding and J. R. Wine, both of Helena, for appellant.

Gunn Rasch, Hall & Gunn, of Helena, for respondents.

STEWART Justice.

This is an appeal from a judgment of the district court of Lewis and Clark county. The case involves the right of a judgment creditor to attach an unliquidated claim, or cause of action for damages in tort.

On January 2, 1931, Maude Adams commenced an action in the above district court against W. F. Cogswell and the Standard Accident Insurance Company. She sought to recover damages in the amount of $25,000 for injuries alleged to have been suffered by her as a result of Cogswell's negligent operation of his automobile. Thereafter, on April 8, 1931, Mae M. Coty, plaintiff and appellant herein, commenced an action in the same court against Maude Adams. This action was predicated upon a promissory note alleged to have been executed by Adams in favor of plaintiff Coty. On filing the action, plaintiff procured the issuance of a writ of attachment against Adams. Pursuant to that writ, the sheriff proceeded to attach Adams' cause of action against Cogswell.

Notwithstanding this purported attachment of which he had full knowledge, Cogswell, subsequent thereto, compromised and settled the action against him by paying to Adams the sum of $2,850, and the action was accordingly dismissed. Thereafter a judgment was rendered in the action of Coty against Adams, in favor of plaintiff. That judgment remains unsatisfied.

On this state of facts, plaintiff Coty instituted an action against Cogswell and his insurer, the Standard Accident Insurance Company, seeking to hold them liable for settling the Adams action after an attachment had been levied thereon. The defendants demurred separately to plaintiff's complaint; each of them interposed a general demurrer on the ground that the complaint failed to state facts sufficient to constitute a cause of action. The demurrers were sustained, and judgment was entered for the defendants. From that judgment, plaintiff appeals.

In their argument before this court, defendants assert and rely on several propositions, any one of which they claim constituted a sufficient ground and reason for sustaining the demurrers. Under the view we take of the case, it will be necessary for us to discuss only one of the propositions for which defendants contend, viz., "that a cause of action for personal injuries is not subject to levy under a writ of attachment."

In their briefs and argument on this question, counsel for both sides have devoted considerable time and space to the question of whether such a cause of action is assignable, or whether it survives the death of the person in whom it reposes. As we view the case, these matters have no relevancy to the real issue presented here. The only question to be determined is whether a cause of action for personal injuries is subject to attachment before judgment is rendered thereon.

Section 9267, Revised Codes of 1921, provides that "all persons having in their possession, or under their control, any credits or other personal property belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, shall be, unless such property be delivered up or transferred, or such debts be paid to the sheriff, liable to the plaintiff for the amount of such credits, property, or debts, until the attachment be discharged, or any judgment recovered by him be satisfied."

If a cause of action for personal injuries can be classified as a "credit" or "personal property" or a "debt" within the meaning of the above section, then defendants are liable to plaintiff, provided the levy of attachment was regularly made.

Plaintiff in support of her contention that such a cause of action is subject to attachment, relies heavily on the case of State ex rel. Coffey v. District Court, 74 Mont. 355, 240 P. 667. In that case it was held that a cause of action based on a contract and a breach thereof was subject to levy and sale on execution. This result was reached on the theory that since the action was one on a contract, the relief sought was the recovery of money or other personal property within the meaning of section 6804, Revised Codes of 1921, and that such a cause of action was a "thing in action" within the meaning of that statute; that a "thing in action" is the same as a "chose in action"; and that a "chose in action" is personal property within the meaning of section 9424, Id., designating property subject to execution. It must be observed, however, that a somewhat different situation exists with respect to actions ex delicto for personal injuries. In the Coffey Case this court cited with approval the case of Bushnell v. Kennedy, 9 Wall. 387, 390, 19 L.Ed. 736, wherein it was held that a chose in action "included all debts and all claims for damages for breach of contract, or for torts connected with contract." Another citation appearing in the Coffey Case is that of 22 R. C. L. 66, wherein choses in action are defined. It is there said that while the term "choses in action" is "sometimes used in the broad sense of all rights of action, whether ex contractu or ex delicto, its narrower and more general use is confined to assignable rights of action ex contractu, and perhaps ex delicto for injuries to property, or for torts connected with a contract. In this...