Field v. Sammis
| Decision Date | 02 September 1903 |
| Citation | 73 P. 617,12 N.M. 36,1903 -NMSC- 013 |
| Parties | FIELD v. SAMMIS (McMILLEN, Intervener). |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
1. A third party may intervene in a garnishment proceeding arising under execution, and set up rights, legal or equitable, in the funds sought to be recovered.
2. A garnishee stands, as nearly as possible, in the same position he would occupy if sued at law by his creditor; and the garnishee's liability, legal and equitable, to the principal debtor, is the measure of his liability.
Appeal from District Court, Bernalillo County; before Justice J. W Crumpacker.
Action by Neill B. Field against D. L. Sammis; A. B. McMillen intervener. Judgment for plaintiff, and intervener appeals. Reversed.
On the 29th day of April, A. D. 1897, the plaintiff recovered a judgment against the defendant for the sum of $2,909.02. Execution was issued upon said judgment December 24, A. D 1900, and upon the same day a copy of the execution and notice of garnishment were served upon John A. Lee, executor of the last will and testament of W. E. Talbott, deceased. On the 8th day of February, 1901, Alonzo B. McMillen filed an intervening petition, claiming part of the money in the hands of the executor. On the 9th day of May, 1901, the garnishee filed his answer, admitting that at the time he was served with garnishment process he was indebted, as such executor to D. L. Sammis, in the sum of $347.88, and that he still owed the amount, and brings the same into court with his answer. The garnishee further says that, subsequent to the service of garnishment on him, C. E. Newcomber, receiver of the New Mexico Savings Bank & Trust Company and successor in office of Neill B. Field, as plaintiff, presented to this garnishee an order in writing from D. L. Sammis, the judgment debtor, which order is as follows:
The garnishee further says that he has been informed that one A. B. McMillen claims some interest in the fund aforesaid, and the garnishee did not feel at liberty to pay the same upon order of said Sammis to the said Newcomber, but brings the same into court, and asks to be discharged. An amended petition of intervention was filed on the 11th day of May, 1901. The amended petition substantially sets up the following facts: That on or about the 10th day of December, 1897, D. L. Sammis employed the petitioner as his attorney to take such steps as might be necessary to enforce his claim against the estate of W. E. Talbott, deceased, and agreed that he should have one-half of the amount recovered for his legal services; that as the attorney of said Sammis he conducted legal proceedings in the probate court and in the district and supreme courts of the territory, which resulted in the recovery of a decree in favor of his client, Sammis, for $347.88, and an order of sale of real estate for the payment thereof on the 17th day of March, 1900. An appeal was taken, but was afterwards dismissed upon a compromise being effected that one-half of the amount recovered belonged to petitioner under his contract with Sammis. That after the recovery of the decree, dismissal of the appeal, and the prorata share due the petitioner had been ascertained, the executor of the estate of Talbott, deceased, was served with process of garnishment upon execution in said cause, and required to answer interrogatories of the plaintiff therein; C. E. Newcomber having in the meantime succeeded to the receivership of the New Mexico Savings Bank & Trust Company. That said executor filed his answer, setting up the conflicting claims of the plaintiff and the petitioner to said fund, and paid the same into court. The petitioner further alleges that the executor refused to pay said McMillen either the amount due Sammis or the portion thereof due McMillen, and prays that one-half of the sum recovered for Sammis and paid into court be ordered paid to the petitioner. A motion to strike out the original petition for intervention upon the ground that the petition did not state facts authorizing an intervention, and that the same was improperly filed, was refiled to the amended petition. Arguments were heard upon the motion to strike out the amended petition, which motion was sustained by the court, and on the same day the court found that the plaintiff was entitled to all of the fund paid into court by the garnishee, less costs, and ordered the same paid to him. From this judgment the intervener prayed an appeal to this court, which was granted.
McMillen & Raynolds, for appellant.
William D. Lee, for appellee.
McFIE, J. (after stating the facts).
If the decision of this case rested upon the status existing on the 29th day of April, 1897, when the receiver recovered his judgment against Sammis, the intervening petitioner would have no standing in court under sections 2947-2949, Comp. Laws 1897. The sections of the statute above referred to require that the petition for intervention must show that the petitioner has an interest in the subject-matter of the litigation, and that the petition shall be filed before the trial commences. McMillen, the intervener here, had no interest in the subject-matter of the litigation between the bank and Sammis at the time the judgment was rendered, nor, so far as the record shows, did he have any knowledge of any garnishment proceedings involving money due Sammis from Talbott's estate prior to 1900. McMillen's rights in the premises, if any such he has, arose after the judgment was rendered in the original proceeding, as it appears that the garnishment proceeding did not arise for more than three years after the judgment was rendered, or December 24, 1900. McMillen alleges in his intervening petition that in 1897 Sammis entered into a verbal contract with him employing him as his attorney to conduct such litigation as might be necessary to secure a claim which he (Sammis) had against the Talbott estate; that McMillen performed the services for which he was employed, and by a long series of litigation through the probate court, the district court, and the Supreme Court secured a decree in favor of Sammis and against the Talbott estate for $347.88, and an order for the sale of real estate belonging to the estate for the payment thereof. This judgment was rendered on the 17th day of March, 1900. An appeal was taken from this judgment, but, being compromised, it was dismissed, and the decree became final. The money had not been paid over to McMillen, who had an undoubted right to receive it for his client, nor had it been paid to his client when the execution was sued out, and under it garnishment proceedings were instituted against John A. Lee, the executor of the estate of Talbott, deceased.
The intervener, McMillen, insists that his contract was fully performed, and that he was entitled to one-half of the amount of money for which he secured judgment against the Talbott estate, when the decree became final, and before the garnishment of the executor, whose duty it was to pay over the money. In other words, that from the date this judgment became final he was the legal and equitable owner of one-half of the amount of that judgment before the garnishment proceedings were instituted, and therefore his rights attached to one-half of this money prior to the garnishment. The intervener further insists that he has a right in this proceeding to set up his right, either legal or equitable and further insists that the judgment creditor has a right to recover in this proceeding only the one-half of the money which Sammis was entitled to. Counsel for appellee denies the right of intervention upon the ground that the petition was not filed prior to the rendition of the original judgment, and that the intervener had no interest in the subject-matter of the litigation which resulted in the original judgment. This position seems to be sound when applied to a proper case, but we are of the opinion that it is not applicable to the case now before us. Garnishment proceedings under an execution as well as under an attachment constitute a separate and distinct proceeding from the original action, and may involve parties who were in no way parties to the action in which the original judgment was rendered. Under section 2708, Comp. Laws 1897, the garnishee is required to make answer in writing and under oath; and, in the event of his failure to answer, judgment by default may be taken. Section 2710, Id., provides for the plaintiff's denying the allegation of the answer and joining issue upon it, and the statute then says that the issue "shall be tried as ordinary issues between plaintiffs." One of the issues to be tried is whether any property or effects of the defendant is in the hands of the garnishee. Under section 3107, Comp. Laws 1897, a similar trial occurs under similar circumstances where the garnishment is in connection with an attachment proceeding. Where, therefore, the answer of the garnishee raises an issue for trial and judgment, it would seem to bring the case within the statute authorizing an intervention prior to judgment, where the intervener disclosed in his petition...
To continue reading
Request your trial