Loewe v. Savings Bank of Danbury

• Decision Date: 03 July 1916
• Docket Number: 286.
• Citation: 236 F. 444
• Parties: LOEWE v. SAVINGS BANK OF DANBURY.
• Court: U.S. Court of Appeals — Second Circuit

236 F. 444

LOEWE v. SAVINGS BANK OF DANBURY.

No. 286.

United States Court of Appeals, Second Circuit.

July 3, 1916

Daniel Davenport, of Bridgeport, Conn., and Walter Gordon Merritt of New York City, for plaintiff in error.

John H Light, of South Norwalk, Conn., and John R. Booth and J. Moss Ives, both of Danbury, Conn., for defendant in error.

Martin J. Cunningham, of Danbury, Conn., and William F. Tammany, of South Norwalk, Conn., for United Hatters of North America.

Before COXE and ROGERS, Circuit Judges, and AUGUSTUS N. HAND District judge.

ROGERS Circuit Judge.

An action was commenced by the present plaintiff and others in the Circuit Court of the United States for the District of Connecticut 13 years ago to recover damages from the members of a trade union charged with conspiracy in restraint of interstate commerce. The questions involved were before that court at various times, and were before this court on several occasions, and were three times before the Supreme Court of the United States. The plaintiffs were manufacturers of hats at Danbury, Conn., where they maintained a factory. The defendants in the original suit were members of a combination called the United Hatters of North America, and they were charged with being in a conspiracy to compel the plaintiffs to unionize their factory. The Supreme Court in Loewe v. Lawlor, 208 U.S. 274, 28 Sup.Ct. 301, 52 L.Ed. 488, 13 Ann.Cas. 815 (1908), sustained the right to maintain the action. In 1912 the Supreme Court refused a writ of certiorari, and in 235 U.S. 522, 35 Sup.Ct. 1170, 59 L.Ed. 341 (1915), that court, affirming the decision of this court in 209 F. 721, 126 C.C.A. 445 (1913), sustained a judgment rendered against the defendants in that action in the sum of $353,130.90.

When the action above referred to, known as the Danbury Hatter's Case, was commenced, a writ of attachment was issued dated August 31, 1903, demanding $240,000 damages and costs. The writ directed the United States marshal for the district of Connecticut to attach to the value of $250,000 the goods and estate of over 150 named defendants, and it was duly served upon them and upon the Savings Bank of Danbury, defendant herein, 'as agent, trustee, and debtor of and to each of the aforesaid persons named therein as defendants.'

The process under which the money deposited in the Savings Bank was attached was issued under section 880 of the General Statutes of Connecticut, Revision of 1902, which reads as follows:

'When the effects of the defendant in any civil action in which a judgment or decree for the payment of money may be rendered, are concealed in the hands of his agent or trustee so that they cannot be found or attached, or where a debt is due from any person to such defendant, or where any debt, legacy, distributive share, is or may become due to such defendant from the estate of any deceased person or insolvent debtor, the plaintiff may insert in his writ a direction to the officer to leave a true and attested copy thereof and of the accompanying complaint, at least twelve days before the session of the court to which it is returnable, with such agent, trustee, or debtor of the defendant, or, as the case may be, with the executor, administrator, or trustee of such estate, or at the usual place of abode of such garnishee; and from the time of leaving such copy, all the effects of the defendant in the hands of any such garnishee, and any debt due from any such garnishee to the defendant, and any debt, legacy, or distributive share, due or that may become due to him from such executor, administrator, or trustee in insolvency, not exempt from execution, shall be secured in the hands of such garnishee to pay such judgment as the plaintiff may recover.'

When the judgment was obtained in the main action, an execution was taken out and put into the hands of the marshal, who, acting by the direction of the plaintiffs, made demand upon the Savings Bank of Danbury, the defendant herein, as agent, trustee, and debtor of and to each of the judgment debtors severally of the sums named in the execution and of any estate of each of the several judgment debtors severally. This demand the Savings Bank refused to comply with, although at the time it was served it was indebted to each of the defendants severally in various amounts which it refused at the time to disclose. At the time the marshal made his demand, the Savings Bank had on deposit $18,461.54 to the credit of various of the defendants. The execution was returned wholly unsatisfied.

An action in scire facias was then brought pursuant to section 931 of the General Statutes of Connecticut, Revision of 1902, to recover attached Savings Bank accounts levied upon by the writ of attachment above mentioned. Section 931 reads as follows:

'If judgment be rendered in favor of the plaintiff in any action by foreign attachment, all the effects in the hands of the garnishee at the time of the attachment, or debts then due from him to the defendant, and any debt, legacy, or distributive share, due or to become due to the defendant from any garnishee as an executor, administrator, or trustee, shall be liable for the payment of such judgment; and the plaintiff, on praying out an execution, may direct the officer serving the same to make demand of such garnishee for the effects of the defendant in his hands, and for the payment of any debt due to the defendant, and such garnishee shall pay said debt or produce said effects, to be taken and applied on said execution; and if he shall have, in any manner, disposed of the effects of the principal in his hands when the copy of the writ was left with him, or shall not expose and subject them to be taken on the execution, or shall not pay to the officer, when demanded, the debt due to the defendant at the time the copy of the writ was left with him, such garnishee shall be liable to satisfy such judgment out of his own estate, as his proper debt, if the effects, or debt, be of sufficient value or amount; if not, then to the value of such effects, or to the amount of such debt. A scire facias may be taken out from the clerk of the court where the judgment was rendered, to be served upon such (court) garnishee, requiring him to appear before such court and show cause, if any he have, to the contrary; and the plaintiff may require the defendant, and the defendant shall have the right, to disclose, on oath, whether he has any of the effects of the debtor in his hands, or is indebted to him; and the parties may introduce any other proper testimony respecting such facts. If it be found that the defendant has the effects of such debtor in his hands, or is indebted to him, or if he makes default of appearance, or refuses to disclose on oath, judgment shall be rendered against him, as for his own debt, to be paid out of his own estate with costs; but if it appear on the trial that the effects are of less value, or the debt of less amount than the judgment recovered against the debtor, judgment shall be rendered to the value of the goods, or to the amount of the debt; and if it appear that the defendant has no effects of such debtor in his hands, or is not indebted to him, he shall recover costs.'

And Congress in 1872 provided as follows:

'In common-law causes in the Circuit and District Courts * * * the plaintiff shall be entitled to similar remedies, by attachment or other process against the property of the defendant, which are now provided by the laws of the state in which such court is held' for the courts thereof; 'and such circuit or district courts may, from time to time, by general rules, adopt such state laws as may be in force in the' states where they are held 'in relation to attachments and other process: * * * Provided, that similar preliminary affidavits or proofs, and similar security as required by such' state 'laws, shall be first furnished by the party seeking such attachment or other remedy. ' Act June 1, 1872, c. 255, Sec. 6, 17 Stat. 197.

No question has been raised but that the action is one which the plaintiff is entitled to bring under the laws of Connecticut and of the United States.

It appears that in December, 1903, after the attachment of the deposits in the Savings Bank and before the rendition of final judgment in the original action, the defendants in that action assigned to the United Hatters of North America, a voluntary association having an office or principal place of business in the city and state of New York, the dividends or interest accruing on said deposits and which were declared after the attachment.

The United Hatters of North America was given notice of the pendency of the proceeding according to the terms of the Connecticut statute under which the proceeding was instituted, and it appeared and filed an answer in which it alleged that the dividends or interest accruing and declared subsequent to the original attachment were not held by the attachment but passed to it and became its property by virtue of the assignments. The United Hatters notified the Savings Bank that it claimed to own the dividends declared or the interest due on such accounts and demanded payment of the same which payment was refused.

It is admitted that at the time of the attachment the amount held in the Savings Bank account to the credit of the various defendants in the original action amounted to $18,461.54. And the District Judge has found that subsequent to the commencement of the present proceeding the defendant with the consent of the United Hatters paid to the plaintiff $17,558.37, on June 26, 1915, and the further sum of $474.65 on account of the principal of said deposits.

The important question involved is whether the interest or dividends which have...