Freitas v. Griffith & Boyd

• Decision Date: 08 June 1911
• Citation: 112 Va. 343,71 S.E. 531
• Court: Virginia Supreme Court
• Parties: FREITAS. v. GRIFFITH & BOYD.

112 Va. 343

71 S.E. 531

FREITAS.

v.GRIFFITH & BOYD.

Supreme Court of Appeals of Virginia.

June 8, 1911.

Execution (§ 386^*) — Supplementary Proceedings — Examination of Third Persons—Scope of Inquiry.

Proceedings on suggestion of an execution creditor, authorized by Code 1904, §§ 3609-3613, against persons indebted to the judgment debtor, or who have property of his in their possession, do not extend to a case of the wife of a debtor, claiming personal property under transfer from the debtor, as the proceeding only contemplates reaching property which the debtor himself could sue for; the proper remedy being by suit by the officer holding the writ, under section 3614.

[Ed. Note.—For other cases, see Execution, Dec. Dig. § 3S6.*]

Error to Circuit Court, Norfolk County.

Action by Griffith & Boyd against M. J. Freitas. From a judgment for plaintiffs, defendant brings error. Reversed and rendered.

J. Edward Cole and E. R. F. Wells, for plaintiff in error.

W. H. Sargeant, Jr., for defendants in error.

WHITTLE, J. The defendants in error, Griffith & Boyd, execution creditors of J. D. Freitas, the husband of the plaintiff in error, M. J. Freitas, issued a summons against her under section 3609 of the Code of 1904, in which they suggested that by reason of the lien of their fieri facias there was a liability on her for the amount of either judgment. On the return day of the summons the garnishee answered, denying that she was either indebted to J. D. Freitas or had any effects belonging to him in her possession. Whereupon the plaintiffs suggested that the garnishee had not fully disclosed her liability, and, neither party demanding a jury, the court proceeded to hear the whole matter of law and fact, and being of opinion that certain personal property in the possession of and claimed by the wife as her own, of the estimated value of $500, had been transferred by the husband to the wife in fraud of the rights of the plaintiffs, rendered judgment against her for that sum, to be applied towards satisfying the plaintiffs' judgment.

Several assignments of error were pressed in argument; but, in our view of the case, the controlling question involves the power of the circuit court, in a summons on suggestion by an execution creditor of a husband, to set aside an alleged fraudulent transfer of personal property from him to the wife.

Proceedings on suggestion are prescribed by sections 3609 to 3613 of the Code, inclusive, and by the terms of these enactments the court can make no order against the party summoned, unless he is found to be either indebted to the execution debtor or to have estate of such debtor in his possession. In the present case, neither of these conditions was shown to exist. It was not pretended that the garnishee was indebted to the execution debtor, or that she had estate of the defendant in her hands. Indeed, the fact was gravely controverted whether the property in question had ever belonged to the husband. On the contrary, the wife asserted absolute title to the property, which she maintained had been in her undisputed...