Lanham v. Lanham
| Citation | 4 S.E. 273,30 W.Va. 222 |
| Parties | LANHAM v. LANHAM. |
| Decision Date | 05 November 1887 |
| Court | West Virginia Supreme Court |
Submitted June 25, 1887.
Syllabus by the Court.
Where under our statute, a suggestion is issued, it is unnecessary that any other person than the one designated as indebted to or holding effects of, the judgment debtor should be summoned.
Where a suggestion is issued, and, after the garnishee has answered it is suggested to the court that he has not fully disclosed his indebtedness, the court will, under the provision of the statute, impanel a jury, without formal pleadings, to inquire whether the garnishee, at the time the suggestion was served on him, was indebted to the judgment debtor, and in what amount, if any.
Upon the trial of such a question, it was proper, this being an action at law, to instruct the jury that if they believed from the evidence that, if a married woman who claimed the garnishee owed the fund to her, and not to the judgment debtor, had no separate estate, and there was no marriage settlement or contract, and claimed that the money was earned by her while living with her husband, and in part acquired by her by raising cattle and selling them on her husband's farm, and that another part was given her by her son, all before the adoption of the Code of 1868, which provides for separate estates of married women, then the money so received by her was the property of her husband.
In this case, even if the married woman had a separate estate and money of her own, the jury from the evidence was justified in rendering the verdict, and it should not have been set aside.
Error to circuit court, Harrison county.
The facts appear in the opinion of the court.
J. J. Davis, for plaintiff in error.
John Bassel, for defendant in error.
On the seventeenth day of January, 1881, Charles Lanham recovered before J. L. HICKMAN, a justice in Harrison county, against Samuel Lanham, a judgment for $484.50, with interest and costs. An execution was issued on this judgment, and a suggestion was, on the ninth day of January, 1882, issued by the clerk of the circuit court of said county, which was duly served on Buchannon Lanham, as a debtor of the said Samuel Lanham. On the twenty-ninth day of May, 1883, the said Buchannon appeared and answered said suggestion, that at the time of the service thereof, he was not indebted in any sum to the said Samuel Lanham. The said Charles Lanham then suggested that Buchannon Lanham had not fully disclosed the debts due by him to, and effects in his hands of, Samuel Lanham, and it was thereupon by the court ordered that a jury be impaneled to inquire as to such debts and effects in the manner provided by law. On the fourteenth day of September, 1883, the jury came, and was sworn "to well and truly try, and ascertain the debts due by Buchannon Lanham to, and effects in his hands, if any, of, Samuel Lanham at the date of the service of the suggestion in this cause, and a true verdict render," etc. On the seventeenth day of the same month the jury rendered this verdict: "We, the jury, find that the garnishee, Buchannon Lanham, was in debt to Samuel Lanham, on the tenth day of January, 1882, [the date of the service of the suggestion,] in the sum of eight hundred and eighty dollars." A motion was made to set aside the verdict, and for a new trial, which motion was, on the first day February, 1884, overruled, and judgment entered for the amount claimed in the suggestion. A bill of exceptions setting out all the evidence was taken. On motion of the plaintiff in the suggestion, after the evidence was all before the jury, the court instructed the jury as follows: "If the jury find from the evidence that the witness Mary Lanham is the wife of Samuel Lanham; that she and the said Samuel were married in 1830; that there was no marriage settlement or contract between her and her said husband; that she, in the year 1849, had money that she had earned, or was given her by her husband after the marriage by permitting her to raise and sell cattle on his farm, and if she had other money that was given her by her son, Dennis Lanham, about the year 1860 or 1862, and before the first day of April, 1869,--then such money was and became the property of said Samuel Lanham; and if said Mary, on the ___ day of December, 1880, lent said money, or any part thereof, to the garnishee, Buchannon Lanham, then such money was the property and money of said Samuel Lanham, and the execution of the plaintiff, Charles Lanham, was a lien thereon, and said Buchannon Lanham would be liable as such garnishee to the extent that the money so claimed to have been lent by said Mary was derived in the manner aforesaid." To the judgment Buchannon Lanham obtained a writ of error and supersedeas.
It is insisted by plaintiff in error that it was error to decide that the fund did not belong to Mary Lanham, who, upon the witness-stand, claimed it, but that it did belong to the judgment debtor Samuel Lanham without said Mary Lanham being a party to the proceedings. The statute provides that a transcript of a judgment before a justice may be filed in the clerk's office of the circuit court of the county in which the judgment was rendered, and the said clerk may issue executions thereon in the same manner and with like effect as if the judgment had been rendered by the circuit court. Section 118, c. 50, Warth's Code, p. 404. We must presume the transcript was so filed in the said clerk's office. The statute further provides that "on a suggestion by the judgment creditor that, by reason of the lien of his writ of fieri facias, there is liability on any person other than the judgment debtor, a summons may be sued out of the office of the clerk of the circuit *** court of the county in which such person resides or may be found, against such person, to answer such suggestions," etc. Section 10, c. 218, Acts 1872-73, as amended by section 1, c. 19, Acts 1875. The...
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