Helms v. State
| Decision Date | 04 June 1929 |
| Docket Number | 19134. |
| Citation | 280 P. 416,137 Okla. 55,1929 OK 229 |
| Parties | HELMS et al. v. STATE ex rel. MIFFLIN, Special Co. Atty. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A debt to be garnishable need not be due and payable at the time the garnishment summons is served, but it must be owing absolutely and beyond contingency at the time the garnishment summons is served.
Commissioners' Opinion.
Appeal from District Court, McCurtain County; Geo. T. Arnett, Judge.
Garnishment proceeding by the State, on the relation of L. E. Mifflin, as special County Attorney, against O. B. Helms, to impound moneys owing J. W. Williams, judgment debtor. From the judgment, Helms and Williams appeal. Reversed and remanded with directions.
Geo. H Montgomery, of Idabel, and A. J. Follens, of Oklahoma City for plaintiffs in error.
L. E Mifflin, of Idabel, and S.W. Hayes, D. A. Richardson, and A. W. Gilliland, all of Oklahoma City, for defendant in error.
On September 10, 1926, the state of Oklahoma, on relation of L. E. Mifflin, special county attorney, obtained a judgment in the district court of McCurtain county, Okl., against J. W. Williams et al. on a supersedeas bond in the sum of $9,000, which had theretofore been declared forfeited. An execution was issued on the judgment and returned "no property found." Thereafter an execution was issued to the sheriff of Oklahoma county, but with no avail. Within a few days after the execution was issued to Oklahoma county, a garnishment summons in aid of execution was caused to be directed to the state of Oklahoma, and was served upon the state auditor on October 28, 1927. The state auditor answered to the effect that the state of Oklahoma held no property belonging to the defendant, and was not indebted to the defendant in any sum. Thereafter the state auditor, on December 12, 1927, filed an affidavit in which it was stated that defendant had, since the filing of his answer, filed a claim with him for the sum of $5,755.71, for material furnished and labor performed in the construction of certain bridges under contract for the state of Oklahoma. The affidavit also disclosed that there was attached to the claim an estimate of work performed between the dates of October 24, 1927, and November 23, 1927, and duly approved by the state highway department. The claim contained an assignment to the American First National Bank of Oklahoma City. Thereafter the American First National Bank, with permission of the court, filed an interplea in the cause by which it claimed all of the funds earned and to be earned by defendant under his contracts for the construction of certain bridges for the state of Oklahoma, by virtue of a certain assignment in writing under date August 19, 1927.
Hereinafter the state of Oklahoma, on relation of L. E. Mifflin, will be referred to as plaintiff, J. W. Williams as defendant, the state auditor as garnishee, and the American First National Bank of Oklahoma City as interpleader. The affidavit of the garnishee was treated as its answer. Upon application of plaintiff, the court ordered the garnishee to pay into court the money owing upon the claim referred to in the affidavit. Interpleader asked that the money be paid to it, and defendant filed a motion requesting that the order requiring the money to be paid into court be set aside, and the garnishee discharged. Issues having been joined upon the interplea and motion, a trial was had resulting in a judgment in favor of interpleader for the sum of $3,800, the amount shown to have been advanced defendant by interpleader under the assignment, and the balance of $1,955.71 was ordered paid on plaintiff's judgment. From this judgment and the order overruling motion for new trial, defendant has appealed.
No complaint is here made of the action of the court in applying the sum of $3,800 to the claim of interpleader. As a matter of fact, defendant, who complains of the judgment rendered, contends that the entire amount should be paid to interpleader under the written assignment held by interpleader. For this reason it will only be necessary to consider one proposition, although several propositions are separately briefed and argued. Since it is here conceded that interpleader is entitled to be preferred at least to the extent of $3,800 of the fund sought to be impounded, and since the estimate covers only four days' work, performed prior to service of the garnishment summons, we need not determine whether anything was owing at the date summons was served for the four days prior to the service of the summons. Defendant contends that the garnishment process impounded only such funds as were absolutely owing defendant at the time of the service of the writ. Plaintiff contends that the garnishment writ created a lien upon all funds which became owing up to the date of trial. The only evidence relating to the time during which the money included in the claim was earned, that we have been able to find, is the estimate itself, and that shows for work and material between the dates of October 24, 1927, and November 23, 1927. The writ of garnishment was served on October 28, 1927. But, since garnishee could not have owed defendant for more than four days under the estimate, and since interpleader was entitled under its assignment to $3,800 of the fund, we may consider that no part of the estimate had been performed at the time of the service of the writ, in so far as plaintiff's interest is concerned.
From the texts on the subject and the numerous authorities examined, the following general rules are gathered Garnishment proceedings are purely statutory remedies, and the statutory provisions relating thereto must be strictly complied with. Garnishment is not available to impound money, unless there is an actual debt existing. This does not mean that the debt must be due and presently payable, but, if there is an...
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