Cunningham Lumber Co. v. New York, N. H. & H. R. Co.
| Decision Date | 09 March 1905 |
| Citation | 77 Conn. 628,60 A. 107 |
| Court | Connecticut Supreme Court |
| Parties | CUNNINGHAM LUMBER CO. v. NEW YORK, N. H. & H. R. CO. |
Appeal from Superior Court, New Haven County; William S. Case, Judge.
Action by scire facias by the Cunningham Lumber Company against the New York, New Haven & Hartford Railroad Company. Prom a judgment for defendant, plaintiff appeals. Affirmed.
James H. Webb and Arnon A. Ailing, for plaintiff. John W. Bristol and Samuel H. Fisher, for defendant.
The plaintiff in this action of scire facias brought a civil action against Frederick P. Mayo by a writ and complaint dated December 2, 1898, and in that action the defendant in this action was served with the process as the trustee and debtor of Mayo. Afterwards the plaintiff in the original action procured two supplemental orders of attachment, in which the defendant in this action was also made a garnishee, and those orders were duly served on December 13, 1898, and December 20, 1898. No question is made as to the legality of those attachments in respect to form or service. Therefore any debt due from this defendant to Mayo at the time of service was secured thereby in the hands of the defendant to pay any judgment the plaintiff might recover in the original civil action under the provisions of Gen. St. 1888, § 1231, and Gen. St. 1902, § 880. The plaintiff obtained a judgment against Mayo on December 10, 1901. Upon the execution issued thereon he caused demand to be made for any money in the hands of this defendant belonging to Mayo. The defendant refused to pay said execution, or any part of it. Thereupon the plaintiff instituted this action of scire facias against this defendant. The single issue is presented whether the defendant was indebted to Mayo either on December 2, December 13, or December 20, 1898, in such form that the debt may be said to be due within the meaning of the statute above mentioned. The trial court has found this issue for the defendant, and the plaintiff appeals, assigning as error that judgment should have been for the plaintiff upon the facts found.
Under the statute, in an action of scire facias in consummation of an action begun by process of foreign attachment there really can be no issue reaching the merits of the action other than the one whether or not the defendant in scire facias was indebted to the defendant in the original action at the time of service. So far as this is a question of fact in the present action, the trial court has explicitly found that there was no indebtedness from the defendant railroad company to Mayo at that time. If this question is one of pure fact, the finding would dispose of the case in this court, because upon the facts found the judgment rendered was the only proper one. But if the finding of the trial court that there was no indebtedness from this defendant to Mayo is treated as a conclusion of law, or a legal inference from the other facts appearing in the record, it is necessary to consider those facts to ascertain whether the conclusion of the trial court is justified. It appears from the record that Mayo, on May 23, 1898, entered into a written contract with the defendant railroad company to do the work and furnish the materials detailed in certain plans and specifications for the sum of $18,600, such work to be done in repairing and widening a wharf; and he (Mayo) further agreed that he would complete the work on or before September 1, 1898. and to the acceptance and satisfaction of said company, and also, if the defendant decided to build any addition to the wharf before the work called for by the plans was completed, he would build such addition for 40 cents per square foot; and that, if the railroad company desired more piles driven than called for by the plans, he would furnish, drive, and finish them for $7 each. No other agreement was made between the defendant and Mayo prior to December 20, 1898. On or about July 1, 1898, Mayo entered upon the performance of the contract and continued the work until about December 15, 1898, when, before it was completed, he abandoned it, and never thereafter completed it. If this was all...
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