Parker v. El Saieh

• Decision Date: 04 May 1928
• Citation: 141 A. 884,107 Conn. 545
• Parties: PARKER, PEEBLES & KNOX v. EL SAIEH.
• Court: Connecticut Supreme Court

141 A. 884

107 Conn. 545

PARKER, PEEBLES & KNOX v. EL SAIEH.

Supreme Court of Errors of Connecticut.

May 4, 1928

Appeal from Superior Court, Hartford County; L. P. Waldo Marvin and Newell Jennings, Judges.

Action by Parker, Peebles & Knox against Antoine El Saieh to recover for merchandise sold and delivered, commenced by process of foreign attachment served upon the National Fire Insurance Company, wherein J. C. Clermont, as assignee in bankruptcy of defendant, was also made defendant. Demurrer to a plea to the jurisdiction was sustained and judgment by default rendered for plaintiff, and defendant appeals. No error.

The plaintiff, a New York corporation, commenced this action, to recover for goods sold and delivered, against the defendant a resident of the republic of Haiti, by writ and complaint returnable to the superior court in Hartford county, which directed service of garnishee process upon the National Fire Insurance Company, a Connecticut corporation located and having a principal place of business in Hartford. Service was so made on March 11, 1926, and the officer's return states that the garnishee disclosed that it was indebted to the defendant " in the sum of $______." On the same date notice of the institution and pendency of the action was ordered to be given to the defendant, by registered mail which order was complied with. On June 16, 1926, an order of continuance for three months was granted, and on January 21 1927, a further order of continuance for one month. By the latter order also--which recites, " It appearing that the defendant has been adjudicated a bankrupt under the laws of Haiti in December, 1926, and that one J. C. Clermont * * * is the agent of said bankruptcy" --service upon Clermont, as well as the defendant, was ordered, and was made in Haiti. On March 10, 1927, attorneys for Clermont, as assignee in bankruptcy, entered a special appearance " solely to plead to the jurisdiction" and on the same day filed such a plea. On May 16, 1927, the plaintiff filed a motion to strike out the plea to the jurisdiction, also a demurrer thereto. On the same date the National Fire Insurance Company, garnishee, filed a voluminous document, entitled " Disclosure by Garnishee," setting forth inter alia that the defendant El Saieh, held an insurance policy issued by the garnishee, a copy of which policy was annexed; that on November 2, 1925, the insured property was damaged by fire to the amount of $18,745.72; that the garnishee had not yet exercised an option, contained in the policy, to reinstate or replace destroyed or damaged property, instead of paying the amount of the loss or damage; and that the garnishee desired to submit all questions arising under the policy to " the judges and courts of Port au Prince, Haiti," in accordance with an agreement contained in the contract. The " disclosure" also stated that other actions against El Saieh, in which the garnishee had been served with process of foreign attachment, were pending in Haiti and in Hartford county.

Subsequently, the plaintiff moved to strike out this " disclosure," also to expunge certain paragraphs thereof. These motions and plaintiff's motion to strike out Clermont's plea to the jurisdiction were denied by the court, Marvin, J., September 9, 1927, but the demurrer to the plea to the jurisdiction was sustained. October 11, 1927, plaintiff filed a motion for judgment by default for failure to plead further. November 4, 1927, the garnishee filed an " additional disclosure," stating that it had exercised its option to reinstate or replace the destroyed or damaged property, that such reinstatement or replacement had been completed in Haiti, and that " the garnishee is not now liable to any one" under its policy. On the same day the defendant moved for judgment in his favor on the ground that, because of the reinstatement or replacement set forth in the " additional disclosure," " no res now exists in this state upon which jurisdiction could now rest." This motion was, on that date, denied by the court, Jennings, J., and the plaintiff's motion for judgment for default was granted, and judgment entered accordingly.

Charles Welles Gross and Wallace W. Brown, both of Hartford, for appellant, assignee in bankruptcy.

John L. Collins, of Hartford, for appellee plaintiff.

John H. Buck, of Hartford, for appellee garnishee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

HINMAN, J. (after stating the facts as above).

The scope of the inquiry required by defendant's assignments of error depends to a considerable extent upon the status of and the effect properly to be accorded to the " disclosure" filed by the garnishee. The trial court in denying the plaintiff's motions to strike it out and to expunge ruled that while it " is not to be considered, for the present at least, a pleading, and its allegations have not been admitted" (by the demurrer to the plea to the jurisdiction) it " performs a certain office, and may be of service to the court" and " is not out of place in the file." It is apparent from the record, however, that before the trial court resort was attempted to some of the allegations thereof, particularly the terms of the insurance policy which was made part of it, in aider of the facts set forth in the plea to the jurisdiction, and many of the propositions advanced on appeal are dependent for support, wholly or in part, upon the existence of facts which appear or are suggested only in the so-called disclosure and additional disclosure. It is important therefore, at the outset, to determine whether the contents of these papers are so available.

Section 5917 of the General Statutes provides that the officer serving process of foreign attachment, under sections 5915 and 5916, " shall, at the time of service, make inquiry" of the garnishee " as to the amount then owed by said garnishee to the defendant in said action; and if said garnishee shall thereupon disclose * * * whether anything is then owed to said defendant, and if so how much, said officer shall then and there endorse such disclosure on said process as a part of his return thereon." It is further provided that such a disclosure shall excuse the garnishee from appearing and the court " may without further proof find the fact to be as shown by such disclosure." It appears by the officer's return in the present case that the National Fire Insurance Company, garnishee, was so inquired of and disclosed that it was indebted to the defendant, but not " how much."

Under section 5918, a corporation made a garnishee but not indebted to the defendant " when the complaint was served upon it" need not appear before the court to disclose if the affidavit of its treasurer or paymaster stating such fact is filed on the return day. Also, under section 5919, a garnishee cited in to disclose before a court held in a town other than that in which he resides, and not indebted to the defendant, may obviate the necessity of appearing by filing, on the return day of the writ, his affidavit stating such fact. Unless appearance by the garnishee is excused by reason of disclosure to the officer, or by filing of affidavit, as above stated, the procedure is provided for by section 5920, as follows:

" The court may examine upon oath any garnishee cited in to disclose as to whether, at the time of the service of the foreign attachment, he had effects of the defendant in his hands, or was indebted to him, and may hear any other proper evidence respecting the same; and if it appear that such garnishee had no effects of the defendant in his possession, or was not indebted to him, he shall recover judgment for his costs; but if it appear that such garnishee had in his possession effects of the defendant, or was indebted to him, the court shall ascertain the amount, and the same shall, if the plaintiff recovers judgment and brings a scire facias against the garnishee, be prima facie evidence of the facts so found; but the defendant shall then have a right again to disclose on oath, and the parties may introduce any other proper testimony regarding such facts. If the plaintiff in such action by foreign attachment withdraws his suit, or fails to recover judgment against the defendant, such garnishee shall be entitled to judgment for his costs."

" It has been uniformly held that the finding of the court upon a disclosure by the garnishee, authorized by that statute, is not a judgment; that the hearing does not amount to the trial of a cause; and that the result is not binding either upon the plaintiff or the garnishee. ‘ It is an informal proceeding, regulated by statute, which is merely preliminary to the bringing of a scire facias,’ upon which alone the rights of the parties can be determined." Welles v. Schroeder, 67 Conn. 257, 258, 34 A. 1051, 1052 (citing Bacon Academy v. De Wolf, 26 Conn. 602; Tweedy v. Nichols, 27 Conn. 518). " When the scire facias is brought the garnishee may again disclose on oath, and the parties may introduce any proper evidence touching the issue, whatever may have been the result of the hearing on his first disclosure. Indeed, the finding on the first disclosure is only made prima facie evidence on the final trial." Tweedy v. Nichols, supra, page 519; Robinson v. Mason, 27 Conn. 270.

As is stated in Bacon Academy v. De Wolf, supra, page 606:

The statute " has always been treated as providing for a preliminary investigation, the result of which, while it is not binding upon either of them" (the attaching plaintiff and the garnishee) is " a convenient mode, by which in most cases they are enabled to discover the extent of their legal rights, and thus to save them from the expense of further litigation. But in cases where the parties have...