H. A. Grimwood Co. v. Capitol Hill Bldg. & Const. Co.

• Decision Date: 16 June 1906
• Citation: 65 A. 304,28 R.I. 32
• Parties: H. A. GRIMWOOD CO. et al. v. CAPITOL HILL BLDG. & CONST. CO. (DARLING, Garnishee).
• Court: Rhode Island Supreme Court

65 A. 304

28 R.I. 32

H. A. GRIMWOOD CO. et al.

v. CAPITOL HILL BLDG. & CONST. CO. (DARLING, Garnishee).

Supreme Court of Rhode Island.

June 16, 1906.

Actions by H. A. Grimwood Company, John W. Hunt, and others, against the Capitol Hill Building & Construction Company, involving attachments sought to be made by trustee process on George E. Darling, garnishee. Prom a rule in superior court charging said Darling as garnishee, plaintiffs and said garnishee except. Exceptions of garnishee and plaintiff Hunt sustained. Exceptions of plaintiff Rogers overruled.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

George H. Huddy, Jr., for H. A. Grimwood Company, and for certain defendants. Terrence M. O'Reilly, for garnishee, and plaintiffs Hunt and Rogers.

DUBOIS, J. These cases, which involve the validity of attachments sought to be made, by trustee process, upon the balance alleged by the plaintiffs to be due from George E. Darling, the garnishee, to the defendants, under a building contract, came to this court, and for convenience were heard together, upon exceptions to the rulings of the presiding justice of the superior court made in charging said George E. Darling as garnishee of the defendants in the first-named case, and in discharging him in each of the other cases. To the ruling of the justice in the first case the garnishee excepted, and the bill of exceptions therein was filed and is prosecuted by him, while in the other cases the exceptions were taken and are prosecuted by the respective plaintiffs in those cases.

1. The first-named plaintiff objects to the prosecution of the exceptions taken by the garnishee, on the ground that he was neither a party to the action in which the ruling was made, nor was he aggrieved thereby, and because the bill of exceptions does not comply with that portion of section 490, p. 139, of the Court and Practice Act of 1905, which requires that "he shall file in the office of the clerk of the superior court his bill of exceptions, in which he shall state separately and clearly the exceptions relied upon." The bill of exceptions is of the tenor following: "State of Rhode Island. Superior Court, H. A. Grimwood Co. v. Capitol Hill Building & Construction Co. No. —. Bill of Exceptions. Now, after final judgment in above case, and after decision of the court charging the garnishee for $600.27, the garnishee, George E. Darling, files his bill of exceptions, and for cause of exceptions shows: (1) That the decision of the court in charging said garnishee is erroneous and contrary to law on the facts set forth in the answers to interrogatories and affidavits made by him, the said George E. Darling, and duly filed in court, in that no right of action existed in favor of the said defendants, or either of them, against the said garnishee at the time of said attachments. (2) That the decision of the court in charging the said garnishee is erroneous and contrary to law on the facts set forth in the affidavits and interrogatories made by said garnishee, and duly filed in court, in that no right of action existed in favor of the said defendants, or either of them, against the said garnishee at the time of said attachments, as to the sum finally found in the hands and possession of the said garnishee (after deducting the several amounts due from the said defendants to said garnishee), namely, $600.27. (3) That the decision of the court in charging the garnishee is against the evidence as set forth in the affidavits and answers to interrogatories filed by the said garnishee. Wherefore the said George E. Darling prays that said decision be reversed and that he be discharged. George E. Darling, by His Attorney, Terrence M. O'Reilly." And it bears the following indorsement: "At the hearing on plaintiff's motion to charge the garnishee, the court granted the motion and charged the garnishee for the sum of $600.27. To this ruling the garnishee excepted. The above as a statement of exception is allowed. William H. Sweetland, P. J. Sup'r Ct." The bill of exceptions, as allowed, substantially complies with the foregoing provision. The exception relied upon is an exception to the ruling or decision charging the garnishee, setting forth the reasons why it is claimed to be erroneous, and referring to the affidavits and answers of the garnishee for the statement of facts from which the conclusions are to be drawn.

2. That an exception lies, in favor of a garnishee, to the ruling of a court charging him as such has been settled by the practice of the court. See Wightman v. Kruger, 23 R. I. 78, 49 Atl. 395; Grieves v. Keane, 23 R. I. 136, 49 Atl. 501. It is true that a distinction has apparently been made by the Legislature between the words "party" and "garnishee" as may be seen by comparing sections 471, 472 (page 134) with section 481 (page 136) of the court and practice act of 1905, but, as sections 471 and 472 aforesaid are revisions of Gen. Laws R. I. 1896, c. 251, § 2, in which the words "party" or "garnishee" are used in the same connection and with the same distinction, when compared with Gen. Laws 1896, c. 250, § 12, it is fair to presume that those words were continued in the revision in preference to others that had not received judicial construction. A charged garnishee may, therefore, be regarded as a party to the proceeding. And, if he has been erroneously charged as garnishee, he certainly has been aggrieved. Service of the original writ, in the case of H. A. Grimwood Company against the defendants, was made upon the garnishee July 14, 1904, and on September 3d of the same year its writ of mesne process was served upon him for the purpose of attaching the personal estate of the defendants in his hands and possession. It is not now claimed that anything was attached by the first service, and the latter is the only attachment relied upon by the plaintiff.

3. The garnishee filed four affidavits, dated, respectively, July 15, and September 27, 1904, and October 11, and 27, 1905, and his answers to the plaintiff's interrogatories, October 18, and 26, 1904. The correctness of the ruling of the presiding justice depends upon the state of facts disclosed by the garnishee in his affidavits and answers to interrogatories relating thereto. It appears therefrom: That, at the time of the service of the copies of said writs upon the said garnishee, there was none of the personal estate of either of said defendants in his hands or possession, directly or indirectly, unless by virtue of a certain written contract existing between them dated February 9, 1904, whereby the defendants agreed to build him a house for the sum of $3,400, payable in three installments: $1,000 when said house is boarded; $1,400 when it is plastered; and the balance when said house is finished. That the contract bears the following indorsement: "Providence, R. I., May 19, 1904. 1 hereby waive the payment of fourteen hundred dollars as the second payment on the within contract and agree to accept twelve hundred dollars as said payment, same to be paid after house is plastered and the furnace installed. All liens to be released. P. C. Bartlett. George E. Darling." That on the same day the following order was presented to the garnishee: "Providence, R. I., May 19, 1904. To George E. Darling, Providence, R. I.—Dear Sir: Please pay to Eugene F. Hazard, or order, the sum of ($1,000) one thousand dollars and deduct the same from the last payment due us under our contract with you. Capitol Hill Bld'g Co., F. C. Bartlett, Man. That he accepted the same as follows: "I hereby accept the above order, agreeing to pay the above amount from the last payment under my contract upon completion of the work called for in said contract and all liens released." That said garnishee has made the first and second payments, under said contract, to the defendants. That the last payment thereunder, amounting to $1,200, and $20 for extras, was not due September 3, 1904, because said contract had not then been fully completed. That when the same becomes due it is subject to a setoff for money paid by the garnishee for material and labor furnished by him upon the contract upon written order of the defendants, and to his claim for damages for the delay of defendants in completing the contract, and also to the total amount of mechanics' liens placed upon the property. That the contract was not completed until September 12, 1904, when it was conditionally accepted in writing, as follows: "Providence, R. I., U. S. A., Sept. 12th, 1904. F. C. Bartlett, Manager, Capitol Hill Building & Construction Co.—Dear Sir: The painter has finished at the house and I have had the gutters put on. I had an export examine the parlor floor and he says it is all right and safe as it is, so I will accept the house as it stands and am ready to settle at once for whatever is due if you will get the liens taken off. Yours truly, George E. Darling." The liens referred to were paid off and...