N.M. Nat. Bank v. Brooks.

• Decision Date: 25 August 1897
• Citation: 49 P. 947,9 N.M. 113
• Parties: NEW MEXICO NAT. BANKv.BROOKS.
• Court: New Mexico Supreme Court

9 N.M. 113

49 P. 947

NEW MEXICO NAT. BANK

v.BROOKS.

Supreme Court of the Territory of New Mexico.

Aug. 25, 1897.

Error to district court, Socorro county; before Justice H. B. Hamilton.

Action by the New Mexico National Bank against George L. Brooks. After judgment for plaintiff, garnishment proceedings were instituted to satisfy the same, and judgment was rendered therein for plaintiff. Afterwards, on intervening petition of defendant, the attached fund was held exempt, and plaintiff brings error. Reversed.

On June 6, 1894, the plaintiff, the New Mexico National Bank, recovered a judgment in the district court for Socorro county against the defendant, George L. Brooks, for $10,734.32 and costs. On April 27, 1896, execution was issued directed to the sheriff of Bernalillo county, who called upon defendant to pay the same, or to show sufficient goods, chattels, effects, and lands whereof the same might be satisfied, which defendant failed to do, and the sheriff, failing to find property of defendant, at the request of plaintiff served the Atchison, Topeka & Santa Fé Railroad Company with garnishment process. On June 2, 1896, the said railroad company entered its special appearance, and moved to quash the garnishment proceeding. On June 6th this motion was overruled, and the garnishee was ruled to answer plaintiff's interrogatories within 10 days. The garnishee accordingly filed its answer showing that it was indebted to the defendant, Brooks, on account of his salary as its live-stock agent for the months of April and May, 1896, in the sum of $400, said salary being $200 per month. On June 20th the court rendered judgment against the said garnishee for the $400, admitted to be due shown that the defendant, by tis answer. It was afterwards shown that the defendant, Brooks, had actual notice of these garnishment proceedings, having been promptly notified by the garnished; that the garnishee' answer was drawn up by the defendant's attorneys, and that defendant himself took said answer to the attorneys of the garnishee with the request that it be filed in time. But it is not shown that defendant knew when garnishee's answer was filed. On October 2, 1896, the defendant, Brooks, filed his petition claiming the money for which judgment had been rendered against the garnishee as exempt, for the reason that it was his personal earnings, and necessary for the support of himself and family. The court thereupon ordered a stay of execution as against the garnishee until the matter could be heard, and defendant thereupon filed a motion to set aside the judgment against the garnishee, or to perpetually stay execution on the same. On October 12th the court overruled this motion, but ordered the money due from the garnishee to be paid into the registry of the court, and allowed the defendant, Brooks, 10 days in which to file his claim for the same. The defendant accordingly filed his claim for said money as exempt, and on November 6th the court entered an order, over the objection and exception of the plaintiff, permitting the defendant to intervene, and to be heard upon his claim of exemption as to the money collected from the garnishee, and setting the matter down for hearing, the defendant's right of exemption being denied by plaintiff. On December 7th the court made an additional order setting the matter down for hearing, to which plaintiff also excepted. The plaintiff then demanded a jury trial as to the defendant's right of exemption which the court refused, and plaintiff excepted. The matter came on for trial before the court January 2, 1897, the court holding that the burden of proof was on the plaintiff to show that the money was not exempt. The court found that the money collected from the garnishee, and then in the registry of the court, was necessary for the support of defendant and his family, ordered that it be allowed as an exemption, and paid over to defendant. Plaintiff filed a motion for a new trial, which was overruled, and thereupon sued out a writ of error.

The question of the right of property to exemption from garnishment may be tried before a judge without a jury in the absence of any statute prescribing the procedure.

James G. Fitch and Summers Burkhart, for plaintiff in error.

Warren, Fergusson & Gillett, for defendant in error.

LAUGHLIN, J. (after stating the facts).

There will be but four propositions considered in this case: First. Whether the final judgment against the garnishee was rest adjudicate. Second. Did the court below rule correctly in permitting plaintiff to traverse defendant's affidavit in his intervening petition? Third. Was plaintiff entitled to trial by jury? And, fourth, was the finding of the court supported by the evidence?

The plaintiff in error contends that the judgment rendered against the garnishee is rest adjudicata, and that, therefore, the court was without any jurisdiction to grant the defendant's intervening petition. It is admitted that the counsel for defendant, Brooks, knew that process of garnishment had been served on the garnishee railroad company, and that his counsel drew up the answer to the garnishment proceedings, and that defendant, Brooks, delivered the answer so drawn up to the counsel for garnishee, and cautioned them to be sure and file it within the time prescribed, and that he knew that the answer was forwarded to the proper officer of the garnishee railroad company to be signed, but that he (defendant) did not know when it was filed in the court, and that defendant, Brooks, took no further notice of the garnishee proceedings until the 2d day of October, 1896, and more than three months after the final judgment had been rendered against the garnishee. The defendant contends (1) that he was necessary party to the garnishment proceedings, and that he was not so made a party thereto; and (2) that it was the duty of the garnishee to claim the exemption for him, the said defendant, in its answer. With respect to the first proposition, the statute provides as follows, to wit: Section 1945, Comp. Laws 1884: “The plaintiff may exhibit in the cause, written allegations and interrogatories at the return term of the writ, and not afterwards touching the property, effects, and credits attached in the hands of any garnishee. The garnishee shall exhibit and file his answer there to, on oath, during such term, unless the court for good cause shown shall order otherwise. In default of such answer, or of a sufficient answer, the plaintiff may take judgment by default against him, or the court may, upon motion, compel him to answer by attachment of his body.” Section 1946, Comp. Laws 1884: “Such judgment by default may be proceeded on to final judgment in like manner as in cases of the defendant in actions upon contracts, but no final judgment shall be rendered against the garnishee until there shall be final judgment against the defendant.” The statute is silent as to the necessity of any process or notice to the defendant after judgment final against him on execution. But it does provide that judgment shall not go against the garnishee until after final judgment against the main defendant. As before stated, the defendant had notice that garnishment proceedings had been served upon the garnishee, but it is not shown how he received such notice. However, he procured the answer for the garnishee to be drawn by his own counsel, delivered the same to the counsel of the garnishee, and cautioned them to see that it was filed seasonably. He had several conversations with one of the counsel for the garnishee about the matter thereafter, yet he failed to make any claim for exemption for more than three months. While he might not have known when the answer was filed, we are of opinion that he had ample notice of the garnishment proceedings, and sufficient opportunity to come in and make his exemption claim before entry of the judgment final against the garnishee. The judgment against the garnishee recites as follows, to wit: “And it appearing to the court by the answer of the said garnishee that the said garnishee is now indebted to the said garnishee is now indebted to the said defendant, George L. Brooks, in the sum of four hundred dollars, which said sum is now due and owing to said defendant on account of his salary as livestock agent for said garnishee for the months of April and May, A. D. 1896, it is therefore considered by the court that the plaintiff, the New Mexico National Bank, do have and recover of the said garnishee, the Atchison, Topeka & Santa Fé Railway Company, the said sum of four hundred dollars so due and owing from the said garnishee to the said defendant, George L. Brooks, as aforesaid.” The counsel for defendant, on October 12, 1896, filed a motion to vacate this judgment, and the court, on the hearing, denied the motion, and the judgment stands unmodified, and not appealed from. We are of opinion, and so hold, that this judgment is a finality, and a complete bar as against the defendant, Brooks; and that the court was without any jurisdiction to make the order on the 2d day of January, 1897, requiring the money then in the hands of the clerk to be paid over to the said defendant, Brooks. Exemption is a personal right, and the party wishing to avail himself of that right must make his claim and assert it seasonably. The defendant should have filed his claim before judgment final against the garnishee. This he did not do, and he lost his personal right. “If a judgment debtor suffer property or credits of his to be subjected to garnishment, making no exception or objection till the garnishee has been condemned to pay or deliver for execution, his right of exemption is lost.” Waples, Attachm. 527. Randolph v. Little, 62 Ala. 396, is a garnishment proceeding similar to the case under consideration, and it was held that the court had no jurisdiction to order the money paid over to the defendant in the original judgment, who...