Hawthorne Sash & Door Co. v. Thomas C. West Co.

• Decision Date: 07 November 1923
• Parties: HAWTHORNE SASH & DOOR CO. v. THOMAS C. WEST CO. ET AL.
• Court: Connecticut Supreme Court

122 A. 658

99 Conn. 672

HAWTHORNE SASH & DOOR CO. v. THOMAS C. WEST CO. ET AL.

Supreme Court of Errors of Connecticut.

November 7, 1923

Appeal from Superior Court, New London County; Newell Jennings Judge.

Scire facias by the Hawthorne Sash & Door Company against the City of New London, garnishee in the action of plaintiff against the Thomas C. West Company and another, Walter A. Klitgard appearing in the scire facias proceeding as claimant. From an adverse judgment, plaintiff appeals. No error.

The complaint, in the nature of a writ of scire facias, recites that the plaintiff brought an action in the superior court in New London county, against Thomas C. West of the town of Waterford, and the Thomas C. West Company, a Connecticut corporation located in Waterford, claiming $2,022.64 damages, by writ of summons and garnishment, duly served on the city of New London, as garnishee, dated June 10, 1921. Then follow the usual allegations as to judgment execution, demand, and refusal to pay, and that the city at the time of the service of the writ of garnishment was indebted to both of the defendants in a greater sum than the amount of the judgment and execution.

The garnishee admits service of the writ and that demand was made for payment of the execution, and admits that at the time of the service of the writ it was " indebted to Thomas C West, doing business under the name of the Thomas C. West Company, in the sum of $889.98." In a second defense the garnishee alleges that one Klitgard claims to have a lien on the indebtedness last named, by virtue of a writ of foreign attachment served on the city in January 1921, in an action brought by Klitgard against the Thomas C. West Company demanding $500 damages, which action is still pending and undetermined. Klitgard was notified and appeared in this action and gave bond as required by section 5973 of the general statutes.

The second defense also sets up several other alleged prior liens upon the admitted indebtedness, which have been eliminated in the course of the trial of this action.

The court found that on June 10, 1921, the date of the service of the plaintiff's writ of garnishment, the city of New London was indebted to Thomas C. West in the sum of $889.98 " by virtue of a contract for the erection of a fire house, entered into between the city and Thomas C West, doing business as the Thomas C. West Company."

As to the Klitgard lien, it is found that the city was duly served with a writ of garnishment on January 11, 1921, in an action brought by Klitgard against the " Thomas C. West Company, Incorporated," claiming $500 damages, and that the Klitgard garnishment was pro tanto a valid prior garnishment of the indebtedness due the contractor.

Other facts are stated in the opinion.

Arthur T. Keefe, of New London, for appellant.

Frank L. McGuire, of New London, for appellee.

BEACH, J. (after stating the facts as above).

Plaintiff claims that the prior garnishment by Klitgard was wholly ineffectual, because he claims that the contract out of which the indebtedness in question arose was made with Thomas C. West as an individual, and that Klitgard, who sued the " Thomas C. West Company, Incorporated," brought his action against the wrong defendant and against a nonexistent corporation. We think these claims are not supported by the facts found.

The contract for the erection of the fire house was signed " Thomas C. West Co., by Thomas C. West, contractor," and the finding, as corrected, is that at the date of the service of the...