Looney v. Stryker

• Decision Date: 02 August 1926
• Docket Number: No. 2944.,2944.
• Citation: 31 N.M. 557,249 P. 112
• Parties: LOONEYv.STRYKER et al.
• Court: New Mexico Supreme Court

31 N.M. 557

249 P. 112

LOONEY

v.STRYKER et al.

No. 2944.

Supreme Court of New Mexico.

Aug. 2, 1926.

Syllabus by the Court.

Injunction will not lie against the state highway commission and the members thereof, the state highway engineer, the state auditor, and the state treasurer, to restrain them from paying moneys due a party contracting with the state, pending the efforts of a creditor of such contractor to procure a judgment at law in order that he may summon such state officials as garnishees, because it is, in effect, an action against the state.

No one can sue the state except by its own consent; and when he avails himself of this consent, he must pursue the remedy which the law has provided.

Appeal from District Court, Santa Fé County; Holloman, Judge.

Suit by W. B. Looney against J. V. Stryker, trading as the J. V. Stryker Construction Company, and others, for an injunction. From a judgment for defendants, plaintiff appeals. Affirmed.

No one can sue the state except by its own consent; and when he avails himself of this consent, he must pursue the remedy which the law has provided.

E. P. Davies, of Santa Fé, for appellant.

Milton J. Helmick, Atty. Gen., and J. W. Armstrong, Asst. Atty. Gen., for appellees.

BICKLEY, J.

[1] This is an action instituted by the appellant against the appellees in the district court of Santa Fé county, wherein appellant sought to have the state officials named as defendants restrained from paying out certain moneys, alleged to be due to the defendant Stryker, until the appellant could obtain judgment against the said defendant Stryker. In response to the rule to show cause issued therein, the state officials filed a demurrer wherein they attacked the sufficiency of the complaint to constitute a cause of action against the demurring defendants. The lower court sustained the demurrer and the plaintiff appealed. The important material allegations of the complaint are that the state highway commission entered into a contract with defendant J. V. Stryker, trading as the J. V. Stryker Construction Company, for the construction of a highway, and that the said Stryker employed certain persons, including plaintiff, to work in the carrying out of said contract, and the plaintiff is the assignee of the claims of the various persons so employed and named in said complaint; that said construction work had been completed by said Stryker and that there is due and owing from the said state highway commission the sum of $1100 or other large sum, the exact amount of which is to the plaintiff unknown; that the said Stryker is a nonresident of the state of New Mexico and is insolvent; that the amount of money due said Stryker by said state highway commission is a trust fund, inasmuch as the labor of the plaintiff and his assignors brought about the existence of said fund so due the defendant Stryker. The complaint prays for discovery as to the exact amount due the said defendant Stryker, for judgment in rem for the amount so ascertained to be due against the said Stryker, and that, pending the determination of the cause, the state officials be restrained from paying out said sum or any part thereof, it being alleged that the remedy at law is inadequate, inasmuch as the fund cannot be garnished until judgment is obtained against the defendant Stryker.

The sole question for determination is whether the facts alleged in the complaint set forth a cause of action against the demurring defendants.

The demurring defendants appeared by the Attorney General of the state of New Mexico and such Attorney General represents the appellees here. It is the contention of the appellees that the action is a suit against the state, and, as such, cannot be maintained; that the appellant's complaint shows him to have an adequate remedy at law.

In support of the proposition that the state may not be sued without its consent and permission, the Attorney General cites the following authorities. Title Guaranty & Surety Co. v. Guernsey (D. C.) 205 F. 91; Smith v. Reeves, 178 U. S. 436, 20 S. Ct. 919, 44 L. Ed. 1140; Kawananakoa v. Polyblank, 205 U. S. 349, 27 S. Ct. 526, 51 L. Ed. 934; 25 R. C. L. “States,” § 49; State ex rel. Evans v. Field, 27 N. M. 384, 201 P. 1059; Dow v. Irwin, 21 N. M. 576, 157 P. 490, L. R. A. 1916E, 1153.

This argument of the Attorney General is not answered by the appellant. He filed no reply brief.

In Dow v. Irwin, 21 N. M. 576, 157 P. 490, L. R. A. 1916E, 1153, we said:

“In the absence of legislative authorization, public policy forbids the garnishment of moneys due the creditors of a county, whether the remedy by which it is sought to reach such funds is denominated legal or equitable.”

We also remarked in that case, although the decision was not rested upon that ground, that:

“Counties, being but political subdivisions of the state, created by the Legislature for the purpose of aiding in the administration of the affairs of the state, can neither sue nor be sued without legislative sanction. They have only such powers as are granted them by the Legislature. * * * Certain officers are provided for, whose duties and powers are defined by law. To these officers are intrusted the local administration of the affairs of the county, with such duties toward the state as the lawmaking power imposes upon them. With the private affairs of the people, they have no concern, and, as pointed out, such corporations differ materially from private corporations, and even from a ‘municipal corporation,’ as that term is used to designate a city or town. In the absence of a statute, so authorizing, a county cannot be sued.”

For stronger reasons, the state may not be sued without its consent.

Appellant correctly argues that since Dow v. Irwin, supra, chapter 26, Laws 1915, chapter 18, Laws 1917, and chapter 153, Laws 1919, evidence a modification in such public policy of this state in so far as garnishment proceedings are concerned. These enactments, however, required a pre-existing judgment against the debtor obtained in some court of this state as a condition precedent to the garnishment of a public official.

Appellant prays that the appellees be enjoined from paying out the money due its creditor Stryker until plaintiff may obtain a judgment against said defendant. Appellant cites 12 R. C. L. p. 827, to the effect that:

“Under certain circumstances, an injunction pendente lite may be issued to restrain the garnishee from parting with property sought to be seized.”

The case of Bank of Monroe v. Ouachita Valley Bank, 124 La. 798, 50 So. 718, 134 Am. St. Rep. 518, is the only case cited in support of the text, and it appears that there the plaintiff undertook to levy upon some supposed indebtedness or property by garnishment and at the same time to make use of the writ of injunction to hold matters in abeyance pendente lite; i. e., until, by means of the proceedings in garnishment, it could develop the existence of property and credits and cause the same to be turned over to the sheriff. The Supreme Court said:

“When, however, the court reached the conclusion that it had taken nothing by the attempted garnishment, its judgment to that effect left nothing for the injunction to rest on, and the whole proceeding, having collapsed, was properly dismissed by a final judgment.”

Aside from the question of this being a suit against the state, the appellant would seem, from the reasoning of that case, not to be entitled to the injunction unless he made a showing that he could seasonably obtain a judgment against the defendant Stryker so as to be able to effectuate a garnishment of the funds belonging to Stryker in the hands of the state officers.

Appellant alleges that defendant Stryker is a nonresident of this state. The consequence is that he cannot obtain a judgment against him in the courts of this state. It has been 2 1/2 years since this action was commenced and we apprehend that, if plaintiff had since procured...