Mundil v. Hutson.

• Decision Date: 03 May 1928
• Docket Number: Nos. 3254, 3263.,s. 3254, 3263.
• Citation: 268 P. 566,33 N.M. 388
• Parties: MUNDILv.HUTSON.
• Court: New Mexico Supreme Court

33 N.M. 388

268 P. 566

MUNDIL

v.HUTSON.

Nos. 3254, 3263.

Supreme Court of New Mexico.

May 3, 1928.Rehearing Denied June 6, 1928.

Syllabus by the Court.

The issue upon the traverse of an affidavit in attachment is the existence of the stated ground for attachment, not affiant's belief of its existence, or good reason so to believe.

A custodian holding funds subject to orders of court becomes subject to garnishment upon final order adjudging ownership of the fund and directing disbursement.

Dissolution of an attachment, for failure, after traverse, to sustain the grounds of attachment set up in the affidavit, is not sufficient ground for dissolving a garnishment by the same plaintiff directed to the custodian of the attached property after the court has ordered its return to the defendant.

Appeal from District Court, Colfax County; Kiker, Judge.

Separate actions by Frederick F. Mundil aganist R. R. Hutson. From the judgments dissolving an attachment and garnishment theretofore secured, plaintiff appeals. Affirmed and remanded as to one appeal, and as to the other reversed and remanded, with directions.

Dissolution of an attachment, for failure, after traverse, to sustain the grounds of attachment set up in the affidavit, is not sufficient ground for dissolving a garnishment by the same plaintiff directed to the custodian of the attached property after the court has ordered its return to the defendant.

F. J. Voorhees and A. C. Voorhees, both of Raton, for appellant.

F. S. Merriau, of Raton, for appellee.

WATSON, J.

Two appeals, Nos. 3254 and 3263, have been argued and submitted together, and, as they are closely related, will be disposed of in one opinion. In both Mundil was plaintiff below and is here appellant, and Hutson was defendant, and is here appellee. They will be referred to as plaintiff and defendant respectively.

Plaintiff's cause of action was an indebtedness of some $1,800. He filed an affidavit in attachment, alleging, in addition to the indebtedness:

“That he has good reason to believe, and does believe, that the defendant is about to fraudulently convey, assign, conceal, or dispose of his property or effects so as to hinder, delay, or defraud his creditors.”

The sheriff of Colfax county attached certain wheat and barley in the shock and oats growing in the field. Upon plaintiff's petition the court made an order for the sale of said property as perishable under Code 1915, § 4319 et seq., appointing the sheriff as special receiver, and requiring of him a bond. Under this order the property was sold and the proceeds remained in the hands of the special receiver.

After the sale defendant traversed the attachment affidavit, denying “that he is about to fraudulently convey, assign, conceal, or dispose of his property or effects, so as to hinder, delay, or defraud his creditors, and therefore denies the truth of the said statement in said affidavit contained and demands strict proof thereof.” Upon trial of the attachment issue, evidence was adduced on the part of plaintiff. Without introducing any evidence, defendant moved to dissolve the writ. The motion was sustained. The court found that:

“The evidence is insufficient to show that the defendant was, at the time the affidavit in attachment was made, about fraudulently to convey or assign, conceal, or dispose of his property and effects, so as to hinder, delay, or defraud his creditors, and is insufficient to show that the plaintiff, or his agent or attorney, had good reason to believe that he was about so to do.”

The court thereupon dissolved the attachment lien and ordered the property “returned to the defendant by the sheriff of Colfax county and custodian thereof.” Upon the same day the court heard the issue of indebtedness and rendered judgment for the plaintiff.

After the dissolution of the attachment and the recovery and entry of judgment for the plaintiff on the indebtedness, and before there had been any restitution of the proceeds of the attached property, plaintiff obtained a writ of garnishment upon his affidavit “that defendant has not, within his knowledge, property in his possession within the state of New Mexico, subject to execution, sufficient to satisfy said judgment.” The writ was served upon the sheriff and special receiver, who answered that when the same was served he had in his possession, by virtue of the aforesaid order discharging the attachment, funds belonging to the defendant in the sum of $818.83.

Thereupon defendant moved to dissolve the garnishment on the ground that the garnishee, as sheriff and custodian, was an officer of the court and that the funds garnished were in the court's custody. The motion was sustained.

Appeal No. 3254 is from the dissolution of the attachment and appeal No. 3263 is from the dissolution of the garnishment.

It seems unnecessary to set forth the evidence upon which the trial court made the finding above quoted and dissolved the attachment. While plaintiff maintains that the evidence was sufficient to establish, prima facie, that defendant was about to dispose of his property in the manner alleged, this is not his main proposition. As to this, it is sufficient to say that, having carefully considered the evidence, we find no error in holding it insufficient to establish such intent or purpose.

[1] Plaintiff's principal contention is that the evidence was sufficient to warrant the affiant in his asserted belief that defendant was about to dispose of his property as stated. The contention rests entirely upon the theory that plaintiff had but to prove good reason to believe and actual belief. We do not so interpret our statute. Code 1915, § 4299 et seq.

Section 4299 specifies the grounds for attachment. Section 4302 requires an affidavit stating that affiant has good reason to believe and does believe the existence of one or more of the grounds. Section 4316 permits the defendant to answer, “denying the truth of any material fact contained in the affidavit.” This leads to a trial “of the truth of the affidavit,” and requires the plaintiff “to prove the existence of the facts denied.” It is to be admitted that there is ambiguity here. It requires interpretation to determine whether the issue is upon affiant's belief, and good reason to believe, or upon the defendant's intent.

In 6 C. J. at page 425, it is said:

“That the attaching creditor has reasonable cause for believing that the alleged grounds of attachment existed will not, according to the weight of authority, prevent the vacation of the writ where it is made to appear that such alleged grounds did not in fact exist.”

Some of the decisions there cited are not in point because of dissimilarity in controlling statutes. However, we consider that St. Louis Clay Products Co. v. Christopher, 152 Wis. 603, 140 N. W. 351, Folsom v. Teichner, 27 Mich. 107, and Blanchard v. Brown, 42 Mich. 46, 3 N. W. 246, are fairly in point. The statutes under which those cases were decided are not different in principle from ours. Under such statutes, while the creditor may have the writ and effect the lien upon belief, and good reason to believe, he must be prepared to prove the existence of the grounds relied on, if the defendant sees fit to traverse the affidavit. Believing this to be the correct rule, the judgment in No. 3254 should be affirmed.

[2] In dissolving the garnishment the court applied what is admittedly the general rule in the absence of modification by statute, that money or property, in the custody of the law, is not subject to garnishment. Speaking generally, money is in the custody of the...