Hebel v. Amazon Ins. Co. of Cincinnati
| Decision Date | 05 April 1876 |
| Court | Michigan Supreme Court |
| Parties | Herman Hebel v. The Amazon Insurance Company of Cincinnati |
Submitted on Briefs January 20, 1876
Error to Superior Court of Detroit.
Judgment reversed, with costs, and a new trial ordered.
Kane & Hibbard, for plaintiff in error.
Moore & Griffin, for defendant in error.
The plaintiff claimed as assignee of one Adolph Hebel to recover ten hundred and thirteen dollars for a fire loss in 1872 suffered by the assignor, and which was covered by a policy issued to the latter by the defendant, a corporation of Ohio doing business here. The company defended on the ground that previous to the assignment to the plaintiff, and after the loss, certain creditors of the assignor commenced two garnishee suits against the company, one before a justice of the peace of Detroit and the other in the Wayne circuit court, based on the demand existing under the policy on account of said loss; that final judgment had passed against the company in both cases, and that the aggregate amount was equal to the whole sum claimed in this suit. And the company insisted that such proceedings afforded a complete answer to the plaintiff's action; that they amounted to a lawful adjudication that the liability on the policy was exclusively due to the garnishee plaintiffs, and not to the assured, and of course not to the plaintiff, who stands in his shoes. When the case came to be submitted to the jury, the judge directed a verdict for the company. The only question there is depends on the validity of the defense as the record shows it. Several points commented on by counsel require no discussion. Concerning the theory of the defense there is no difficulty. The question is, whether, as we see the record, there were facts to support the theory. It will be noticed at the outset that the action is by the assignee to enforce against the company the very obligation it directly incurred by contract with the assured, and that in substance the defense made by the company is, that prior to this suit, and previous to the assignment by the assured the right to this same obligation was ousted from the ownership of the assured and vested in third persons by proceedings on the part of those persons against the company under the garnishee law. It is material to distinguish between the attitude of these parties and this controversy, and the state of things when the garnishor and garnishee are contending about the consequences and results of garnishee proceedings which have taken place between them. Many things may take place in the course of such proceedings which the garnishee, on the one hand, or the garnishor, on the other, may be bound or estopped by, as between themselves, but which the garnishee may not be able to urge as matter of defense against the suit of the principal defendant. Still there is no question of the right of one prosecuted as garnishee to make many admissions and waivers without endangering his protection. He need not wait to be led by the shoulder into court. He need not wage battle at every step. The law itself not only recognizes his right to suffer default, but provides what the practice shall be in such case, and invests the judgment with the same protective force as it does one awarded after vigorous contest. Still the proceeding must have a beginning agreeable to its nature, in order to hold the principal defendant, and the nature of the proceedings requires that the law shall be brought to bear directly against the right of the principal defendant in the hands or under the control of the garnishee, and the mode, and the only one, provided for this is by service of the process on, or submission to service by, some one competent in law to receive service. The law itself must be caused to attach, and it can be effected in no other way. Independent and spontaneous submission by the custodian or debtor of the right belonging to the principal defendant cannot bind him. The intervention of the law, according to its own substantial appointments, can alone initiate compulsory novation. A garnishee may admit away his own right over which he has power, but he cannot admit away another's right over which he has no power. It is a plain proposition that one against whom there is an existing claim cannot by his own act alone transfer it into an obligation to another. The right itself and the power to enforce it must remain in the original owner unless there is a novation by his consent or by force of legal proceedings, and where the end is sought through the garnishee law and depends on no assent or acquiescence of the principal defendant, the right must be taken into legal custody and subjected by course of law, and as against the principal defendant this cannot be accomplished by the ex parte action of the debtor or custodian of the right, even on the request of the garnishor, though made in the form of complaint filed and process sent out. There must be action under process which brings home to the garnishee, and the right to be subjected, the power of the law itself. In ordinary cases there is no difficulty, because the identical party being exposed to service is actually served. The case is different where the service must be vicarious, where it can be made only on some one standing in a special relation to the intended garnishee. In such case the existence of such special relation is just as indispensable in order to cause the law to attach and bind the principal defendant as is the identity of the garnishee with the person actually served in ordinary cases. If the relation appointed by law as a condition of valid service, as something to make the supposed service binding, does not exist, the law does not attach to the right, and the principal defendant is not bound, and if the intended...
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