Crisp v. Ft. Wayne & E. R. Co.
| Decision Date | 12 February 1894 |
| Citation | 57 N.W. 1050,98 Mich. 648 |
| Parties | CRISP v. FT. WAYNE & E. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Wayne county; George S. Hosmer, Judge.
Action by Christopher Crisp against the Ft. Wayne & Elmwood Railway Company for wages. The action was originally brought in justice's court, where plaintiff had judgment. On appeal to the circuit court, judgment was again rendered for plaintiff, and defendant brings error. Affirmed.
Edwin F. Conely and Orla B. Taylor, for appellant.
Frank T. Lodge, for appellee.
The defendant, being garnished in a proceeding in justice's court wherein the plaintiff was principal defendant disclosed that it was indebted to the principal defendant for his personal labor, but was silent as to whether he was the householder. It does not appear that the fact was within the knowledge of the garnishee defendant, though there was testimony tending to show that it had been so informed by him. At the close of the examination the garnishee paid to the justice all money that was due to the principal defendant, and it was applied to the judgment against him. This action was thereupon brought against the garnishee defendant by the principal debtor to recover his exemptions which he claims that the garnishee defendant could not lawfully pay over to the justice.
A garnishee proceeding is purely statutory. If the garnishee would protect himself from an action by his creditor, he must see that he takes each step in conformity to law. In other words, he cannot waive any rights of the principal debtor without incurring a personal liability. Hirth v Pfeifle, 42 Mich. 31, 3 N.W. 239. The proceeding is statutory, and in derogation of the common law, and the statute must be strictly followed, to bind the principal defendant. Maynards v. Cornwell, 3 Mich. 309; Townsend v. Circuit Judge, 39 Mich. 407; Sievers v. Wheel Co., 43 Mich. 275, 5 N.W. 311; Ford v. Dock Co., 50 Mich. 358, 15 N.W. 509. In Hanselman v. Kregel, 27 N.W. 678, this court said: Section 8032, How. Ann. St., says that the act shall not apply to $25 of the amount due the principal defendant, where he is a householder, and the demand was for his personal labor; and section 8037, which permits payment of any sum to the justice in advance of the adjudication, expressly excepts this labor claim. As the right did not exist independent of the statute, and as the statute does not compel it, but on the contrary expressly denies it, I think the payment of such sum is at the peril of the garnishee, unless circumstances create an estoppel which should preclude the principal defendant from asserting such claim against the garnishee. It may be said that this is a hardship upon the garnishee; that he must determine at his peril whether the principal defendant is or is not the householder, when he may have no means of ascertaining the fact. It may be admitted that the law might be improved,but the hardship is not a necessary one. There is no law that compels a garnishee to determine the question, and to testify accordingly. He may state any fact that has come to his knowledge, by hearsay or otherwise; and it is his duty to do so, under the repeated decisions of this court. Drake v. Railway Co., 69 Mich. 168, 37 N.W. 70; Sexton v. Amos, 39 Mich. 695. He may always safely state that he does not know whether the principal defendant is the householder, and, until it appears that he is not, the labor claim is secure; for, unless the disclosure shows a clear liability of the fund to the process, it cannot be reached. Townsend v. Circuit Judge, 39 Mich. 407; Sexton v. Amos, Id. 695; Lyon v. Kneeland, 58 Mich. 570, 25 N.W. 518; Newell v. Blair, 7 Mich. 103; Thomas v. Sprague, 12 Mich. 120; Wellover v. Soule, 30 Mich. 481; Hewitt v. Lumber Co., 38 Mich. 701; Hackley v. Kanitz, 39 Mich. 398; Spears v. Chapman, 43 Mich. 541, 5 N.W. 1038; Weirich v. Scribner, 44 Mich. 73, 6 N.W. 91; Lorman v. Insurance Co., 33 Mich. 65. Thus it is seen that the garnishee may always protect himself by his disclosure, and he may perhaps do the same by giving the principal defendant an opportunity to appear and defend the suit against the garnishee, without which the fund cannot be reached unless he chooses to pay it to the justice. But there is no room for an estoppel here, because the illegal payment was not made in reliance on any representation of the principal defendant, but of defendant's own volition. The judgment will be affirmed.
On January 2, 1892, Morris Pluff commenced suit in justice's court by summons against the plaintiff, and on January 21st, a judgment was entered by consent against the plaintiff for $47 damages and $1.50 costs. On commencement of suit the defendant company was garnished,-the plaintiff being a street-car driver in its employ,-and on July 14th the company paid the amount due Crisp, $11.90, into court, and filed a disclosure, stating that that amount was due plaintiff at the time of the service of the writ of garnishment. Subsequently, the defendant company was garnished four times upon that judgment, and made disclosures each time, and paid the money due him into court. The disclosures contained no statement that Crisp was a householder. On each occasion, Crisp was notified by the paymaster of the defendant company that his pay had been garnished by Pluff in the suit before the justice, within three or four days after the service of the writ, and in time for him to appear before the justice and protect his interest. On March 8, 1892, when the third writ of garnishment was served, Crisp gave written notice to the defendant company that he was a householder. On one occasion, Crisp claims that the paymaster asked him if he was a householder, when he told him that he was; and the paymaster then instructed him that all he had to do was to go to the justice court, and make a demand for his money, and he would get it. The paymaster, however, denies that such conversation occurred. Crisp claims that he called at the justice court, and, it being near the hour of closing, the justice told him to call the next morning, and he would let him know, which, however, he did not do, as he was out of town the following morning. At another time, Mr. Crisp's attorney attempted to appear for him, but this was refused by the justice. Further than this, it is not claimed that Crisp attempted to protect his interests. He now attempts to recover his wages from the defendant company. He had judgment before the justice for $60 damages and $2 costs. Defendant appealed to the circuit court, and on trial there verdict was directed for plaintiff for the same amount. Defendant brings error.
The statute relating to proceedings against garnishees in justice's court provides: "The person summoned as garnishee, from the time of the service of such summons, shall be deemed to be liable to the plaintiff in such suit to the amount of the property, money and effects in his hands or possession or under his control or due from him to the defendant in such suit: provided, that when the defendant is a householder having a family, nothing herein contained shall be applicable to any indebtedness of such garnishee to the defendant for the personal labor of such defendant or his family for any amount not exceeding the sum of twenty-five dollars." Section 8037 provides that "the garnishee may, after the expiration of the time limited by law for an appeal or stay of execution on said judgment, if no appeal has been taken or stay of proceedings put in, pay to the justice before whom the examination was had all money then due and owing by him to the defendant or sufficient to satisfy said judgment (except such as is provided by sec. 2 of this act,) and thereupon such justice shall execute and deliver to the garnishee a release and discharge for the amount paid." The exemption referred to in this section is recited above as a part...
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