Dow v. Irwin.

• Decision Date: 12 January 1915
• Docket Number: No. 1807.,1807.
• Citation: 157 P. 490,21 N.M. 576
• Court: New Mexico Supreme Court
• Parties: DOWv.IRWIN.

21 N.M. 576

157 P. 490

DOW

v.IRWIN.

No. 1807.

Supreme Court of New Mexico.

Jan. 12, 1915.On Motion for Rehearing, May 1, 1916.

Syllabus by the Court.

In the absence of legislative authorization, public policy forbids the garnishment of moneys due the creditors of a county, whether the remedy by which it is sought to reach such funds is denominated legal or equitable.

In civil cases it is a well-recognized rule that questions not advanced on the original hearing will not be considered on the petition for rehearing.

Appeal from District Court, Chaves County; J. T. McClure, Judge.

Action by Hiram M. Dow against W. J. Irwin and another. From a judgment for plaintiff, defendant Irwin appeals. Reversed and remanded.

Hanna, J., dissenting.

In the absence of legislative authorization, public policy forbids the garnishment of moneys due the creditors of a county, whether the remedy by which it is sought to reach such funds is denominated legal or equitable.

Gibbany & Epstein, of Roswell, for appellant.

W. A. Dunn and Tomlinson Fort, both of Roswell, for appellee.

ROBERTS, C. J.

On the 28th day of July, 1913, E. S. Mundy recovered a judgment against W. J. Irwin, in the district court of Chaves county for $1,200. Later Mundy assigned the judgment to the appellant herein. An execution upon the judgment was issued and returned nulla bona by the sheriff of said county. Irwin had a contract with the county road board of Chaves county for the erection of a bridge in said county, and, after the bridge had been fully completed and accepted by said county, there remained due Irwin, under said contract, the sum of $4,811.60. Before the amount due had been paid to Irwin, and after his contract had been completed and the bridge accepted by the county road board, appellee, Dow, instituted this action to subject said fund to the payment on his judgment. The complaint set up the foregoing facts in detail, and alleged that Irwin was insolvent; that appellee was without an adequate remedy at law, by which he could enforce the payment of said judgment. The county road board of Chaves county were made defendants, and the appellee asked for a decree, subjecting the moneys due from the county road board to Irwin, or so much thereof as was necessary to the payment of appellee's said judgment. The county road board answered, admitting that it was indebted to Irwin in the sum named in the complaint, and stated that it was ready and willing to pay into court the amount of its indebtedness to Irwin, or to pay the same to such parties as the court might order. Appellant also appeared in said action, and upon issue framed the cause was submitted to the court for trial. The court found for appellee, and ordered the county road board to pay into the hands of the clerk of the court, for the use and benefit of appellee, the amount of its judgment and costs of suit. From this judgment appellant appeals.

The controlling question in this case is whether moneys due and owing to a judgment debtor by a county may be subjected, by a court of equity, to the payment of such judgment, where the judgment creditor is without a legal remedy by which he can enforce the payment of the same. Appellee denominates this proceeding as an “equitable garnishment,” and cites the following cases and authorities in support of his right to maintain the action: Plummer v. School District, 90 Ark. 236, 118 S. W. 1011, 134 Am. St. Rep. 28, 17 Ann. Cas. 508; Clark v. Bert, 2 Kan. App. 407, 42 Pac. 733; Pendleton v. Perkins, 49 Mo. 565; note by Judge Freeman to case of Dickinson v. Johnson (Ky.) 96 Am. St. Rep. 434; Speed v. Brown, 10 B. Mon. (Ky.) 108; Ludes v. Hood, 29 Kan. 55; Thompson v. Nixon, 3 Edw. Ch. (N. Y.) 457; McCoun v. Dorsheimer, Clark (N. Y.) 144; Smith v. 653 4 Edw. Ch. (N. Y.) 653; Waterbury v. Board of Com'rs, 10 Mont. 515, 26 Pac. 1002, 24 Am. St. Rep. 67; Kepley v. Sheehan, 9 Kan. App. 885, 61 Pac. 333; Dillon on Municipal Corporations (5th Ed.) § 249; Pomeroy's Equity Jurisprudence, vol. 6, § 881; Shinn on Attachment and Garnishment, § 501.

The great majority of the foregoing cases involved the question of the right to reach money in the hands of city and town officials, and whether such cases could be properly considered in point, where it is sought to reach, by equitable proceedings, money owing by a county, might present an interesting question, owing to the distinction which exists between such corporations. Counties are “local subdivisions of the state, created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them.” Dillon on Municipal Corporations, § 35. In the foregoing section, Judge Dillon clearly points out the distinction which exists between such corporations. Counties, being but political subdivisions of the state, created by the Legislature for the purpose of aiding in the administration of the affairs of the state, can neither sue nor be sued without legislative sanction. They have only such powers as are granted them by the Legislature. This distinction which exists between strictly municipal corporations and counties does not seem to have been considered in any of the foregoing cases, and it is probably true that a court which would subject moneys in the hands of a municipal corporation to a creditor's bill would also entertain a suit to reach money in the hands of a county or school district. We are not, in this case, however, required to determine the question, as it affects a strictly municipal corporation, and shall therefore pass to the consideration of the question before us.

Appellee concedes that under the statute (section 2546, Code 1915) garnishment will not lie, at law, against a public officer. This section expressly says that “no public officer shall be summoned as garnishee in his official capacity,” and because of this express prohibition against proceeding against a public officer under the statute, appellee claims the right to proceed in equity, because of the absence of a legal remedy. Waiving all questions of public policy, which will be discussed later, it may be stated that it is very questionable, in the absence of statutory authorization, whether a creditor's bill can reach the choses in action of the judgment debtor, unless the case presents some independent ground of equity jurisdiction, such as fraud, trust, or the like. That it cannot is stated by Mr. Pomeroy (section 877, vol. 6, Pomeroy's Equity Jurisprudence) as the majority rule, in Donavan v. Finn, 1 Hopk. Ch. (N. Y.) 59, 14 Am. Dec. 531. In discussing the question, Chancellor Sanford says:

“According to our distribution of jurisdictions, suits for the recovery of ordinary debts are appropriated to the courts of common law; and the proceedings for enforcing the judgments rendered in such suits are alike allotted to those courts. In any such case, where the subject of the suit is exclusively of legal cognizance, a court of equity has no jurisdiction to enforce the judgment, by its own methods of proceeding, or to give a better remedy than the law gives. If the remedies of the law are imperfect, equity, as has been often said in the English Chancery, has no jurisdiction to give execution, in aid of the infirmity of the law. When any fact giving equitable jurisdiction intervenes in the transactions between creditor and debtor, such a fact becomes a foundation of relief in this court; but in any ordinary case, free from fraud or injustice, the execution of the judgment and the methods of compelling satisfaction are confined to the courts of law. When a creditor comes to this court for relief, he must come, not merely to obtain judgment or satisfaction of a judgment, but he must present facts which form a case of equitable jurisdiction. He must show that the debtor has made some fraudulent disposition of his property, or that the case stands infected with some trust, collusion, or injustice, against which it is the province of this court to give relief. In such cases, this court has jurisdiction, not for the purpose of giving a species of execution, which the courts of law do not afford; but for the purpose of giving relief in the particular cases allotted to its jurisdiction; and when the cause, by reason of such facts, is properly here, the court proceeds, upon all the circumstances of the case, to give final and equitable relief.

When, upon an execution, the sheriff returns that no property of the debtor is found in his county, the return is evidence of the fact stated; but neither the return, nor the fact returned, gives any jurisdiction to this court. If the same fact were returned from every county of the state, these remedies at law would be exhausted; but equity would have no jurisdiction upon the mere ground that no property had been found by the sheriffs. But when equity has jurisdiction, by reason of some disposition of the debtor's property, made in fraud of the creditor, and when in such a case the sheriff of the county in which the property is situated returns upon the execution that no property is found, the return is important evidence to show that the fraudulent disposition has had effect, by preventing the service of the execution. By the existing law, the property of a debtor, consisting of things in action, held by him, without fraud, is not subject to the effect of any execution issued against his property; and while a court of law does not reach these things by its execution, a court of equity does not reach them by its execution for the purpose of satisfying either judgments at law or decrees in equity. To subject these things to the satisfaction of a judgment, by seizing and selling them, like goods in possession, would be to alter the established law of the land; and this court has no power to make such an alteration, in the name of equity. The maxims that every right has a remedy, and that where the...