Moore v. Gilmore
| Decision Date | 08 December 1896 |
| Citation | 16 Wash. 123,47 P. 239 |
| Parties | MOORE ET AL. v. GILMORE (FISCHER ET AL., GARNISHEES. |
| Court | Washington Supreme Court |
Appeal from superior court, King county; R. Osborn, Judge.
Action by Miles C. Moore and others, executors of the last will of Dorsey S. Baker, deceased, against David Gilmore, and against George W. Fischer and others as garnishees. From a judgment discharging the garnishees, the plaintiffs appeal. Affirmed.
Boyer & Guie and Greene, Turner & Lewis, for appellants.
Ira Bronson, for respondents.
The plaintiffs brought suit upon a promissory note, and obtained judgment against the defendant Gilmore. While the action was pending, and a few days prior to the rendition of the judgment, they caused a writ of garnishment to be issued and served on the other parties respondent. The garnishees appeared and answered, but did not disclose any liability to the principal defendant. Plaintiffs controverted the answers and, a jury being waived, the issue came on for trial before the court. The facts showed that some of the garnishees were indebted to Gilmore and one Kirkman as joint claimants; that Kirkman was dead; that, after his death Gilmore and Kirkman's executors brought suit on said claim against said garnishees, and obtained judgment; that thereafter the plaintiffs brought suit on a bond given, in said action last hereinbefore mentioned, to the plaintiffs by all of the garnishees, and obtained a judgment against all of them; and that none of the judgments had been paid. On these facts the court discharged the garnishees, and the plaintiffs have appealed.
The question is presented whether, upon a claim against one party, garnishees can be held upon a debt owed such party and another person jointly. The authorities are in conflict upon this point. A number of cases have been cited by the appellants holding that a joint claim may be reached for the individual debt of one of the joint claimants, and some of the text-books are to that effect. Whitney v. Munroe, 36 Am. Dec. 732; Thorndike v. De Wolf, 6 Pick. 119; Miller v. Richardson, 1 Mo. 310; Fogleman v. Shively (Ind. App.) 30 N.E. 909; Perry v. Blatch (Kan. App.) 43 P. 989; Drake, Attachm. §§ 566-572; Am. & Eng. Enc. Law, p. 1169. There are other cases and text-books, cited by the respondents, holding to the contrary; and a number of cases have been cited by both parties relating to the garnishment of debts due a partnership on a claim against one of the partners. A distinction is drawn in the authorities between debts due joint claimants and those due to a partnership; and in some states, where it is held that joint claims may be reached upon a debt against one joint claimant, it is held that the interest of a single partner in a partnership claim cannot be so reached. The reasons for this usually given are that a partner has no separable interest in any specific partnership property, and that such property is first liable for partnership debts, and to such claims as may be due the other partners, owing by the partner proceeded against, and that the effect of this is to so involve the proceedings as to render the remedy impracticable of enforcement. If there were no such debts, however, it would seem that this reason ought not to prevail, but with that question we have not to deal in this case.
We shall not undertake to review the authorities cited in detail, but we have examined them, and are of the opinion that the better-sustained rule is that a joint claim may be reached by garnishment to the extent of one of the claimant's interests therein to satisfy his individual debt. The reasons given in those cases holding that a joint debt may not be so reached are not always satisfactory or tenable. A very general one given is that the garnishing creditor can have no greater rights or privileges than the principal defendant or primary creditor of the garnishee. Another one is that the demand cannot be severed, and thus subject the garnishee to the liability of several suits. Also, that the other joint claimant is an interested party, and entitled to half the moneys collected. Aside from the question that the garnishing creditor may aways inquire into fraudulent transactions between the principal defendant and the garnishee, for the purpose of placing such defendant's property beyond the reach of his creditors, the law is well settled that a single claim against one party may be severed to the extent of taking only sufficient of it to satisfy the demands of the garnishing creditor. The fact that the garnishee may be authorized to pay the whole demand to the officer, or to turn over the whole property to him, as the case may be, can have no bearing on this; for it might not always be allowable at his option, as in a case where he should be under two garnishments from different courts to recover different claims against the principal defendant. If the law will thus sever a single demand owing by the garnishee to the principal defendant solely, it would seem that the only reason for holding that the garnishee cannot be held to answer for the debt of one, where he owes two or more jointly, would be in consequence of a failure in the law to provide for the protection of the interests of the other joint claimants and the garnishee as against them; and, if such protection is given, the difficulty is obviated.
As the right of garnishment is a statutory one, it is probable that the conflict in the authorities is due in a measure to a difference in the statutory provisions of the several states upon the subject of garnishment. The tendency of legislation in this state at least, has been to extend rather than curtail the right. The general purpose of the law is to subject all property of the debtor, over and above his exemptions, to the payment of his debts. Where the right of garnishment is given, it would seem that the question as to whether it would be available in a particular case would be dependent upon two matters. These are that the remedy...
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...v. Superior Court, 196 Wash. 468, 83 P.2d 345 (1938); State ex rel. McAvoy v. Gilliam, 60 Wash. 420, 111 P. 401 (1910); Moore v. Gilmore, 16 Wash. 123, 47 P. 239 (1896); Hays v. Merchants' Bank, 10 Wash. 573, 39 P. 98 (1895). See also O'Connor v. Matzdorff, 76 Wash.2d 589, 458 P.2d 154 (196......
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