McNish v. Burch

• Decision Date: 23 January 1926
• Docket Number: 5149
• Citation: 49 S.D. 215,207 N.W. 85
• Parties: C. H. McNISH, Plaintiff, v. N. D. BURGH et al, Judges of the Circuit Court in and for Lyman County, Defendants.
• Court: South Dakota Supreme Court

49 S.D. 215

207 N.W. 85

C. H. McNISH, Plaintiff,

v.

N. D. BURGH et al, Judges of the Circuit Court in and for Lyman County, Defendants. South Dakota Supreme Court Original Proceedings #5149--Writ granted Alan Bogue, Parker, SD E. E. Wagner, Mitchell, SD Attorneys for Plaintiff. Brown & Brown, Chamberlain, SD Attorneys for Defendants. Opinion filed January 23, 1926

GATES, P. J.

A complete statement of the history of the litigation leading up to the bringing of this proceeding would present an extremely complicated state of facts, and would cover many pages. Suffice it to say that it grows out of the cases of Birken v. Hickey, 176 N.W. 137, and Birken v. Tapper, 189 N.W. 698, 24 ALR 832, which see. In the latter case Birken secured a judgment against Tapper in the circuit court of Turner county, which we affirmed. Tapper deems himself damaged by Birken by reason of the unsuccessful attachments in Birken v. Hickey. He assigns said cause of action to Dunbar. Dunbar brings suit against Birken in the circuit court of Lyman county, and attempts to garnishee the judgment, and Tapper's liability thereon, rendered in Turner county. McNish, as the assignee of said judgment, brings this original proceeding in this court to prohibit the circuit judges of the eleventh circuit, of which Lyman county is a part, from proceeding with the garnishment. Judge Bartine makes return that, by reason of his prior professional employment in certain phases of the litigation, he has not taken, and will not take, part in the case pending in Lyman county. Judge Burch makes return setting forth the proceedings that have thus far been had in the case.

The only question we find it necessary to discuss and determine is whether garnishment process from the circuit court of Lyman county is available to reach the debt upon which judgment has been rendered in the circuit court of Turner county. Apparently by the letter of the statute it is, because of the provisions of sections 2453 and 2472, Rev. Code 1919, which read as follows:

"Section 2453. When creditors May Proceed by Garnishment. Any creditor shall be entitled to proceed by garnishment in any court having jurisdiction of the subject of the action, against any person, including a public corporation, who shall he indebted to or have any property whatever, real or personal, in his possession or under his control, belonging to such creditor's debtor, in the cases, upon the conditions and in the manner prescribed in this chapter. ..."

"Section 2472. When Defendant May Not Sue Garnishee. No action shall be commenced by the defendant or his assignee against a garnishee upon any claim or demand liable to garnishment, or to recover any property garnished, nor execution be issued upon a judgment in favor of the defendant against such garnishee subsequent to the service of the garnishee summons upon him, until the termination of the garnishee action: and, if an action shall have been commenced or an execution issued, it shall be stayed by the court or a judge thereof upon the garnishee's application, except that upon cause shown, the court or judge may by order permit the commencement of such an action, or the issuing of an execution, or the further prosecution of one stayed."

It will be noticed that the latter section expressly refers to a debt evidenced by a judgment. If by said section it was intended by the Legislature that garnishee process from any court could issue upon the debt evidenced by the judgment of another court, then it could issue, not only from the circuit court of another circuit, but it could issue from the federal court of this or another district, and the hands of the court in which the judgment was rendered, would be tied by the garnishment process. Likewise it could be claimed that the judgments of the federal courts and of the courts of other states would be subject to garnishment in this state.

In the latter part of said section 2472 it will be noticed that, "the court, or a judge thereof," may permit execution to be issued on the judgment which is sought to be garnished. Does this mean the court in which he judgment sought to be garnished was rendered if different from the court where the garnishment proceeding is pending? If it does, then an execution from both courts might issue and thee original judgment debtor subjected to double payment. Or does the language refer to the court in which the garnishment proceeding is pending? Surely the latter court has no power to stay the issuance of execution in the former. As was said in Waples on Attachment and Garnishment, p. 596:

"The court, being possessed of jurisdiction, has the exclusive right of effectuating its decree by execution. No other equal tribunal can step before it and say that the judgment debtor must pay to some person other than the judgment creditor, without interfering with the jurisdictional power to execute the judgment rendered."

As has been stated in several cases, if it was the legislative intent that a judgment of another court was to be subject to garnishment, then the Legislature should have pointed out the steps to be taken to make the garnishment effective. Its failure to do so is persuasive that judgments of the same court only were in contemplation.

In considering this case we are not unmindful of the decision in Hardwick v. Harris. 22 NM 394, 163 P. 253, LRA 1917D, 1137, a leading case presenting the minority view, but that view is contrary to the great weight of authority, and, to our minds, the majority view is supported by the better reasons. Among others, the majority view is supported by the following: Detroit F. & M. Ins. Co. v. Stewart, 123 Ark. 42, 184 S.W. 438; Hamill v. Peck, 11 Colo. App. 1, 52 P. 216; Elson v. C., R. T. & P. Co., 154 Iowa 96, 43 LRA (NS) 531, AnnCas 1914A, 955; Sievers v. Woodburn, 43 Mich. 275, 5 N.W. 311; Boyle v. Musser-Sauntry L., 88 Minn. 456, 97 AmStRep 538; Tourville v. Wabash R. Co., 148 Mo. 614, 50 S. W. 300, 71 AmStRep 650; Perkins v. Guy, 2 Mont. 15; Scott v. Rohman, 43 Neb. 618, 47 AmStRep 767; Shinn v. Zimmerman, 23 N. J. Law 150, 55 AmDec 260;...