Johnson v. Lundeen

• Decision Date: 17 October 1921
• Docket Number: 4470.
• Parties: JOHNSON ET AL. v. LUNDEEN ET AL.
• Court: Montana Supreme Court

200 P. 451

61 Mont. 145

JOHNSON ET AL. v. LUNDEEN ET AL.

No. 4470.

Supreme Court of Montana

October 17, 1921

Commissioners' Opinion.

Appeal from District Court, Musselshell County; George P. Jones Judge.

Action by W. H. Johnson and another, copartners, against A. M Lundeen and another, in which the Bank of Twin Bridges was served with execution and notice of garnishment, and from an order that it pay over money to be applied to the judgment in the action. said bank appeals. Remanded, with directions to set aside the order.

V. D Dusenbery, of Roundup, J. R. Jones, of Twin Bridges, and Lyman H. Bennett, of Virginia City, for appellant.

Maris & Mercer, of Roundup, and Dillavou & Moore, of Billings, for respondents.

SPENCER C.

On June 12, 1919, the plaintiffs caused execution to issue upon a judgment theretofore made and entered in their favor against the defendants. Service of the execution was had upon the Bank of Twin Bridges, together with notice of garnishment seeking to levy upon moneys supposed to be in the possession of the bank, belonging to defendants. In answer to the garnishment the bank in substance denied being indebted to defendants or having in its possession any of their property. Pursuant to the statutes governing proceedings supplementary to execution the bank was thereafter ordered to appear and answer concerning any money or property of the defendants in its possession. It did so appear and answer on July 9, 1919, and through its cashier denied that it was indebted to defendants, or either of them, or that it had in its possession any property belonging to them supplementing its denial with its reasons why it was not indebted or did not have any of their property. Notwithstanding its denial, the court at the conclusion of the evidence made its order that the bank had in its possession $3,023.97 belonging to and the property of the defendant A. M. Lundeen, and not exempt from execution, and ordered it immediately to deliver that sum to the sheriff of Musselshell county to be applied toward the satisfaction of the judgment in the above-entitled action. The bank has appealed from this order.

The decisions of this court, supplemented by those from other jurisdictions, are conclusive of this appeal. Whenever the provisions of our statutes are invoked in supplemental proceedings in aid of execution the court must look to the statute for whatever power it may desire to exercise. In re Downey, 31 Mont. 441, 78 P. 772. Sections 6853 and 6854, Rev. Codes, contain those powers and contain the only powers possessed by the court in proceedings of this nature. If upon examination of the garnishee, debts owing or property is discovered indisputably belonging to the judgment debtor, and not exempt from execution, the court may order the same applied in satisfaction of the judgment (section 6853, R. C.; Wilson v. Harris, 21 Mont. 374, 54 P. 46), but where the examination discloses a denial of indebtedness or a disputed ownership in property, the court is powerless to grant any relief other than that authorized by the provisions of section 6854, R. C., supra. In Wilson v. Harris, supra, this court has discussed the aims and purposes of supplemental proceedings and the power of the court thereunder and in support of that discussion the following from Everton v. Parker, 3 Wash. 331, 28 P. 536, commends itself to our approval, wherein the same procedure under similar statutes as ours was invoked:

"When the court finds that the garnishee denies the indebtedness, it is not for it to determine whether or not such denial was made in good faith, or whether it was a good or bad denial, true or false. Some of these elements are frequently involved in denials, and sometimes all of them, but whether or not they are involved are questions to be determined by other tribunals, if in an action for debt, as this was claimed to be, by a jury, after due notice given the defendant to prepare his defense. Section 386 of the Code provides that: 'If it appear that a person or corporation alleged to have property of the judgment debtor, or indebted to him, claims an interest in the property adverse to him, or denies the debt, the court or judge may authorize, by an order to that effect, the judgment creditor to institute an action against such person or corporation for the recovery of such interest or debt; and the court or judge may by an order forbid a transfer or other disposition of such interest or

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