Davis v. Spencer

• Decision Date: 25 February 1930
• Citation: 285 P. 193,87 Mont. 12
• Parties: DAVIS v. SPENCER (FIRST NAT. BANK OF WHITEFISH, Garnishee).
• Court: Montana Supreme Court

285 P. 193

87 Mont. 12

DAVIS v. SPENCER (FIRST NAT. BANK OF WHITEFISH, Garnishee).

Supreme Court of Montana

February 25, 1930

Appeal from District Court, Flathead County; C. W. Pomeroy, Judge.

Action by B. F. Davis against C. E. Spencer, defendant, and the First National Bank of Whitefish, garnishee. Judgment for plaintiff. From an order requiring garnishee to pay over money for application on judgment, garnishee appeals. Affirmed.

Rock D Frederick, of Whitefish, for appellant.

Walchli & Korn, of Kalispell, for respondent.

CALLAWAY C.J.

Plaintiff recovered judgment against the defendant C. E. Spencer for the sum of $2,000 and costs on October 18, 1928, and on the 30th of that month procured the issuance of an execution upon the judgment, which was placed in the hands of the sheriff. The sheriff levied upon an automobile, and garnisheed the sum of $1,000 in the possession of the First National Bank of Whitefish, Mont. In making its return to the sheriff, the bank admitted an indebtedness to C. E. Spencer or to Minnie Spencer, in the sum of $1,000. On October 31, 1928, Minnie Spencer gave notice to the sheriff, and delivered to him an affidavit, setting forth her claim to the ownership of the automobile and the money held in the bank under garnishment and demanded that he release the same immediately. Upon the sheriff's refusal to comply with the demand, she commenced an action against him in the district court charging him with converting the property.

The sheriff, in his answer, admitted that Mrs. Spencer had claimed ownership of the property described in her complaint and had demanded the return thereof, and that he had refused to release it, alleging his holding of the same by virtue of a writ of execution issued in the case of plaintiff against C. E. Spencer. In an affirmative defense, among other allegations, the sheriff averred upon his information and belief that the disputed property at the time of the levy belonged to C. E. Spencer. After the issues were made up, the case went to trial before a jury, which found its verdict in favor of the sheriff. This was on March 13, 1929.

After judgment in his favor, the sheriff demanded that the bank pay over to him the deposit of the $1,000, which he claimed to be the property of the judgment debtor Spencer, but this demand was refused. The automobile was sold upon the execution, and after deducting the expenses of the sale, the sum of $238.25 was applied upon the judgment, which is all that has been paid thereon. Thereupon plaintiff sought relief under the provisions of the Code relating to proceedings supplementary to the execution. Chapter 37, part 3, Code Civ. Proc., R. C. 1921. A sufficient affidavit having been filed by plaintiff, the court issued an order to show cause requiring the bank to appear on July 22, 1929, and answer regarding the property in its possession belonging to the defendant C. E. Spencer and as to why an order should not be made commanding it to deliver the money for application upon the judgment. At the time fixed, the vice president of the bank, with counsel, appeared in open court. Counsel for the bank admitted the truth of all of the allegations of the affidavit, except as to the ownership of the bank deposit.

A colloquy between opposing counsel disclosed this situation The bank admitted liability to Mrs. Minnie Spencer, denied liability to C. E. Spencer. Counsel for the bank said, "We have the money on deposit. The money, so far as we know, belongs to Minnie Spencer." Counsel for plaintiff asked if the facts could not be stipulated-"that this account which the bank has in the name of Minnie Spencer has been carried in the bank a good many years and consisted of pay-roll checks in favor of C. E. Spencer that were turned over by him to Minnie Spencer and she deposited the money in this same account, and that both C. E. Spencer and Minnie Spencer drew on this account as they pleased and that this deposit of one thousand dollars now in the bank and involved in this controversy was money involved in this same account? Will you admit this is the same account which was litigated in the case of ...