Ide v. Harwood

• Decision Date: 06 February 1883
• Citation: 30 Minn. 191,14 N.W. 884
• Parties: IDE AND ANOTHER v HARWOOD, DEFENDANT, AND ANOTHER, GARNISHEE.
• Court: Minnesota Supreme Court

30 Minn. 191

14 N.W. 884

IDE AND ANOTHERvHARWOOD, DEFENDANT, AND ANOTHER, GARNISHEE.

Supreme Court of Minnesota.

Filed February 6, 1883.

Appeal from order of district court county of Hennepin, denying motion for new trial.

Rogers & Rogers, Lamprey, James & Warren, and Koon, Merrill & Keith for appellants.

Levi & Cray, Rea, Woolley & Kitchell, S. R. Thayer, J. B. Atwater, Atwater & Atwater, E. C. Chatfield, and J. Bartleson, for respondents.

DICKINSON, J.

The defendant Harwood, being largely indebted to this plaintiff and to numerous other persons, made a general assignment to the garnishee, Pettit, for the benefit of his creditors. The assignment included book accounts owing to Harwood. The account-books in which their debts were charged came into the possession of Pettit as such assignee. This plaintiff thereafter commenced an action against Harwood to recover his debt, and in the action garnished Pettit by the service of a garnishee summons upon him. By supplemental complaint, filed after the disclosure of the garnishee, the assignment of Harwood was alleged to have been fraudulently made, and such proceedings were had that judgment was entered adjudging such assignment fraudulent and void as to creditors.

The controversy upon this appeal is whether the service of the garnishee summons upon Pettit attached the unpaid debts (book accounts) owing to Harwood. The claim of the plaintiff is contested by other creditors of Harwood, who assert rights respecting the same debts which are the subject of this controversy. They have been by stipulation made parties in this proceeding.

The substance of the statute relating to garnishment (title 10, c. 66, Gen. St. 1878) is, so far as need be here considered, as follows: In an action for the recovery of money, upon the filing of an affidavit showing that a person named “has property, money, or effects in his hands, or under his control, belonging to the defendant in such action, or that such person is indebted to the defendant,” a garnishee summons may be issued against such person. Section 164. The summons shall require the person to whom it is directed (garnishee) to appear and answer, “touching his indebtedness to the defendant, and any property, money, or effects of the defendant in his possession or under his control.” It is to be served personally upon such garnishee. Section 166. “The service of the summons upon the garnishee shall attach and bind all the property, money, or effects in his hands, or under his control, belonging to the defendant, and any and all indebtedness owing by him to the defendant at the date of such service, to respond to final judgment in the action.” Section 167. “Bills of exchange and promissory notes, whether under or overdue, drafts, bonds, certificates of deposit, bank notes, money contracts for the payment of money, and other written evidence of indebtedness, in the hands of the garnishee at the time of service of the summons, shall be deemed ‘effects' under the provisions of this section.” Section 172.

It is conceded that the debts in question were subject to garnishment by the creditors of Harwood. The controversy is, as to whether they could be garnished by proceedings directed to Pettit and not to the debtors owing these debts; whether service of summons upon him operated as an attachment of the debts; or whether summons should have been directed to the several debtors and served upon them. The plaintiff contends that the garnishment was effectual as to the debts in question, because, according to the common meaning of words, and especially within the definition given to the word “effects” in section 172, the debts were “property” and “effects” of the defendant in the posession and under the control of Pettit, and hence, by the terms of the statute, subject to garnishment by summons directed to and served upon him. The statute above referred to prescribes in terms, which are not obscure or subject to doubt, a method by which a debt may be garnished in an action against the creditor. It consists in the filing of the affidavit, the issuing of the summons to the debtor, and its service upon him, with notice to the principal defendant. The garnishment of debts has been a common proceeding in our practice under this statute for many years, and the method above indicated has been usually if not always the one adopted for that purpose.

The debts in question would clearly have been attachable in this manner if it had not been for the assignment from Harwood to Pettit. Nor, indeed, if the assignment and assumed transfer to Pettit had not been made, could garnishment of these debts have been made in any other way than by summons served upon the debtors. But that assignment neither changed the nature of the debts, the subject of the attempted garnishment, nor, as to creditors of Harwood seeking to subject the debts by attachment or other process to the satisfaction of their demands, was the assignment effectual as a transfer of the debts, or of any title or right respecting them. As to such...