Hulley v. Chedic, 1,398.

Docket Nº1,398.
Citation36 P. 783, 22 Nev. 127
Case DateMay 24, 1894
CourtSupreme Court of Nevada

36 P. 783

22 Nev. 127

HULLEY
v.
CHEDIC et al.

No. 1,398.

Supreme Court of Nevada

May 24, 1894


Syllabus by Bigelow, J.

1. Notice of garnishment served upon a debtor, while giving a right of action against him for money owing to the defendant in the garnishment proceeding, does not constitute a lien upon money with which he may subsequently pay his debt, so as to enable the garnisher to follow the money into the hands of third persons to whom it has been paid.

2. Especially is this the case where the money in the hands of the third person does not come from the garnishee, but is obtained through the assignment by the defendant in the garnishment proceeding of a judgment founded upon the debt against which the garnishment has been levied.

3. A judgment creditor, whose execution has been returned unsatisfied, has a right of action to recover a money judgment against a person to whom the debtor has transferred property for the purpose of hindering, delaying, and defrauding his creditors, and who has subsequently converted such property into money.

4. An action brought for the purpose of obtaining such a judgment is in equity. The fact that it is brought in pursuance of an order obtained in a proceeding supplemental to execution does not make it an action at law.

5. Where a jury is called to assist in the trial of an equity case, only special issues should be submitted to them. A judgment based upon a general verdict in such an action is erroneous.

6. Where a note has been regularly indorsed and delivered by the payee to the indorsee, neither the maker of the note, nor his creditors, can challenge the right of the indorsee to receive payment thereof upon the ground that the indersement was made causamortis, and that the gift had been subsequently revoked by the recovery of the donor. Only the donor, or his legal representatives, could make such defense.

Appeal from district court, Ormsby county; Richard Rising, Judge.

Action by Thomas Hulley against W. H. Chedic and Adeline Chedic. From a judgment for defendants, plaintiff appeals. Reversed.

On June 4, 1891, A. E. Harris executed and delivered to the defendant W. H. Chedic a promissory note for about $4,000, which was secured by a chattel mortgage upon certain property situated in Ormsby county, Nev. This note and mortgage, it is claimed, were immediately assigned by the mortgagee to his mother, the defendant Adeline A. Chedic, as security for $3,900 which he then owed her upon a note made by him to his father some time prior to that, and by his father given to her. Harris had also executed another chattel mortgage upon the same property to D. C. Simpson, upon which Simpson commenced an action of foreclosure. On February 10, 1892, the Chedic note and mortgage were assigned by Adeline back to the defendant W. H., and on February 11, 1892, he intervened in the action so commenced by Simpson; alleging that he was the owner of the said note and mortgage, and asking for a judgment thereon against Harris, and for a foreclosure of the mortgage, as a first lien upon the property. On May 19, 1892, a decree was duly rendered in his favor, accordingly. On April 19, 1892, the plaintiff obtained a judgment against the defendant W. H. Chedic for the sum of $1,605, with interest and costs, upon a note made by the latter to him on October 1, 1890. The next day he duly served a notice of garnishment upon Harris, intended to garnish the money then owing by him to W. H. upon the note and mortgage then in suit. August 4, 1892, W. H. assigned the judgment so obtained by him against Harris to the defendant Adeline, which assignment the plaintiff alleges to have been made and accepted for the purpose of hindering, delaying, and defrauding W. H. Chedic's creditors. February 6, 1893, both of the defendants assigned the said judgment to Simpson for the sum of $4,195, which was paid to Adeline. February 16, 1893, a second execution was issued upon the plaintiff's judgment against W. H., and thereunder, on the same day, a notice of garnishment was duly served upon the defendant Adeline, to which she made no answer. Under supplementary proceedings she was then cited to appear before a referee, where she denied any indebtedness to W. H., and claimed to be the owner of the money obtained by her from Simpson. Thereupon, an order was made, authorizing the plaintiff to institute an action against her to recover so much of the money as might be necessary to pay the plaintiff's judgment against W. H. Chedic, and this action was then commenced. The execution upon the plaintiff's judgment was returned unsatisfied. The complaint asks for judgment against the defendant Adeline for the sum of $2,164.80, with interest, that being the amount due upon plaintiff's judgment against W. H. Chedic. Upon the trial, judgment was rendered for the defendants, and the plaintiff appeals.

Trenmor Coffin and J. D. Torreyson, for appellant.

R. M. Clark, for respondents.

BIGELOW, J. (after stating the facts).

To the proper disposition of this case, it seems necessary to first determine what are the plaintiff's rights under the allegations of his complaint, and what were the issues to be determined upon the trial. Admitting, as contended by the plaintiff's attorneys, that by the assignment made February 10, 1892, from Adeline A. Chedic to W. H. Chedic, the latter became vested with such a title to the note and mortgage as made the debt owing by Harris subject to the claims of W. H. Chedic's creditors, we are of the opinion that the plaintiff, by his garnishment of Harris, obtained no claim upon the money received by her in consideration of the assignment of the judgment to Simpson. This conclusion is based upon two grounds: (1) However it may be with specific property in the hands of a garnishee, our conclusion is that garnishment does not give the creditor any lien upon a debt owing by the garnishee to the debtor in the action, nor upon any money or property with which he may afterwards pay it. The books speak of it as giving a "quasilien," --such a lien as will justify the garnishee in refusing to pay his creditor until the garnishment is disposed of, and as will give the creditor a right of action against the garnishee for any money or property in his hands owing or belonging to the party against whom the writ runs (Wade, Attachm. § 329), but not such a lien as will enable the creditor to follow any money that may be paid thereon into the hands of third persons. The only case cited as sustaining a contrary view is that of Sessions v. Stevens, 1 Fla. 233, where the point involved was the right of an assignee of a note to maintain an action against the maker where, previous to the assignment, the maker had been garnished in an action against the payee, and judgment obtained against him in the garnishment proceedings. That, of course, is quite a different question from the one we have here, and, as applied to this case, some of the language used is a little too strong. The authorities are in...

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2 practice notes
  • Roesch v. W. B. Worthen Co.
    • United States
    • Supreme Court of Arkansas
    • June 20, 1910
    ...43 Am. St. Rep. 849; 28 Kan. 415; 42 Am. Rep. 167. Appellant acquired no lien against appellee. 80 Ill.App. 338; 75 Tex. 458; 86 Md. 344; 22 Nev. 127; 58 Am. St. Rep. 729; 32 Minn. 381; 166 Mo. 503; 69 N.H. 390; 76 Am. St. Rep. 178; 66 Neb. 236; 73 Tex. 612; 11 S.W. 863. The salary of a pub......
  • Cann v. George B. Williams Land & Livestock Co., 3065.
    • United States
    • Nevada Supreme Court of Nevada
    • September 5, 1935
    ...of law it is our opinion that appellant's contention is correct, and that it is supported by the weight of authority. Hulley v. Chedic, 22 Nev. 127, 36 P. 783, 786, 58 Am. St. Rep. 729; Bond v. Bulgheroni, 215 Cal. 7, 8 P.2d 130; Blake v. Blake, 86 Cal.App. 377, 260 P. 937; Phillips v. Pric......
2 cases
  • Roesch v. W. B. Worthen Co.
    • United States
    • Supreme Court of Arkansas
    • June 20, 1910
    ...43 Am. St. Rep. 849; 28 Kan. 415; 42 Am. Rep. 167. Appellant acquired no lien against appellee. 80 Ill.App. 338; 75 Tex. 458; 86 Md. 344; 22 Nev. 127; 58 Am. St. Rep. 729; 32 Minn. 381; 166 Mo. 503; 69 N.H. 390; 76 Am. St. Rep. 178; 66 Neb. 236; 73 Tex. 612; 11 S.W. 863. The salary of a pub......
  • Cann v. George B. Williams Land & Livestock Co., 3065.
    • United States
    • Nevada Supreme Court of Nevada
    • September 5, 1935
    ...of law it is our opinion that appellant's contention is correct, and that it is supported by the weight of authority. Hulley v. Chedic, 22 Nev. 127, 36 P. 783, 786, 58 Am. St. Rep. 729; Bond v. Bulgheroni, 215 Cal. 7, 8 P.2d 130; Blake v. Blake, 86 Cal.App. 377, 260 P. 937; Phillips v. Pric......

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