Perea v. Colorado Nat. Bank of Texas

• Decision Date: 24 July 1891
• Citation: 27 P. 322,6 N.M. 1,1891 -NMSC- 015
• Parties: PEREA v. COLORADO NAT. BANK OF TEXAS.
• Court: New Mexico Supreme Court

27 P. 322

6 N.M. 1, 1891 -NMSC- 015

PEREA v. COLORADO NAT. BANK OF TEXAS.

Supreme Court of New Mexico

July 24, 1891

Error to district court Bernalillo county; W. H. BRINKER, Judge.

Proceeding in garnishment by Colorado National Bank against Pedro Perea garnishee. Judgment for the bank. The garnishee brings error. Reversed.

The plaintiff in error was on the 11th day of June, 1887 summoned as the garnishee of Jesus M. Perea, his brother under an execution issued out of the district court for Bernalillo county upon a judgment of that court in favor of defendant in error and against said Jesus M. Perea, for $4,794.90, rendered on the 3d day of May, 1887. At the September term, 1887, allegations were filed setting up that the garnishee had received 20,000 head of sheep from the judgment debtor, and had never paid any sum whatever therefor, but was still indebted for the same; that the sheep were so received for the purpose of hindering, delaying, and preventing the creditors of Jesus M. Perea from collecting their indebtedness; and that the garnishee was indebted to the judgment debtor in a large sum for goods, wares, and merchandise, and in the sum of $34,000 for real estate. With these allegations were filed interrogatories to the garnishee, inquiring fully into the transactions between the garnishee and the said Jesus M. Perea. At the same time the garnishee filed his answer, admitting that he had received the sheep, but denying that he had not paid for them, and denying that he received them for the purpose alleged, and denying that he was indebted to said Jesus M. Perea in any sum. By his answer to the interrogatories he showed that on the 29th day of January, 1887, Jesus M. Perea sold and transferred to him said sheep and some other personal property, and a considerable amount of real estate, the consideration thereof being the assumption and payment by Pedro Perea of a large number of debtors of said Jesus M Perea, aggregating about $100,000, a considerable portion of which had at the time of answering been actually paid. The consideration expressed in the written transfers of said property was $60,000 for the personal property and $34,000 for the real estate. Plaintiff filed also a denial of the truth of the answer. The case was tried upon the issue thus formed, and by direction of the court the jury returned a verdict in favor of the plaintiff below, and a judgment was entered against the garnishee for $5,604.70 and costs. The defendant made a motion for a new trial, which was denied. The judge afterwards refused to sign a bill of exceptions, on the ground that the time for the presentation of the same had expired, and that he had no power to do so. He subsequently did sign a bill certifying an exception to his refusal to settle the first bill tendered. The bill signed contains the bill which the judge refused to settle and the amendments proposed by counsel for the plaintiff below.

Catron, Knaebel & Clancy, for plaintiff in error.

W. B. Childers, for defendant in error.

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

This was a garnishment proceeding under an execution, as provided for by section 2159 of the Complied Laws of the territory which reads as follows: "When any execution shall be placed in the hands of any officer for collection he shall call upon the defendant for payment thereof, or to show him sufficient goods, chattels, effects, and lands whereof the same may be satisfied; and if the officer fail to find property sufficient to make the same he shall notify all persons who may be indebted to said defendant not to pay said defendant, but to appear before the court out of which said execution issued, and make true answers on oath concerning his indebtedness, and the like proceedings shall be had as in cases of garnishees summoned in suits originating by attachments." This section, as well as that pertaining to attachment proceedings, was adopted substantially from the statutes of the state of Missouri by the legislature of the territory, and it is a well-recognized principle that thereby the legislature adopted the judicial construction that had been given to it in that state at the time of its adoption. The supreme court of the United States says that this is a received canon of construction fully acquiesced in by that court; that, where English statutes--such, for instance, as the statute of frauds and the statutes of limitations--have been adopted into our own legislation, the known and settled construction of the statutes by courts of law has been considered as silently incorporated into the acts, or has been received with all the weight of authority. McDonald v. Hovey, 110 U.S. 619, 4 S.Ct. 142; Pennock v. Dialogue, 2 Pet. 1. In Alabama it was held that the legislature in that state in adopting the Code must be presumed to have known the judicial construction which had been placed upon the former statutes, and therefore the re-enactment in the Code of the provisions substantially contained in former statutes was a legislative adoption of their known judicial construction. Duramus v. Harrison, 26 Ala. 326. In applying this rule to the statute in question, we must presume that it was adopted by the legislature in view of the judicial construction it had received prior to its adoption by the supreme court of Missouri, and in referring to the rulings of that court upon the statute in question we find, in Van Winkle v. McKee, it was held "that a deed of assignment void as to creditors did not create the relation of debtor and creditor between the grantor in the assignment and the assignee. The validity of the assignment cannot be tried in a court of law upon an issue made between a judgment creditor and the assignee garnished on an execution under the provisions of the act in question." Van Winkle v. McKee, 7 Mo. 435. In Lee v. Tabor, 8 Mo. 233, it was held: "In a proceeding of garnishment under attachment such an issue could be made and tried,"--but in referring to the case of Van Winkle v. McKee, supra, the court said: "That case arose on construction of the statute giving plaintiff in execution a right to garnishee the debtors of the defendant. The reasoning of the court in that case would certainly apply to this; and, were the phraseology of the statute concerning attachments as circumscribed as that in relation to executions, we would feel no hesitation in pronouncing a like judgment." Under the execution law a garnishment is given against the debtors of the defendant in the execution. The statute concerning attachments gives an original writ against the lands, tenements, goods, moneys, effects, and credits of the debtor, in whosesoever hands they may be, and directs that all persons shall be summoned as garnishees who are named as such in the writ, and such others as the officer shall find in possession of moneys, goods, or effects of the defendant; but no such provisions are made for garnishment under execution. In the case of Wood v. Edgar, 13 Mo. 451, the court briefly, yet explicitly, sets forth what this court believes to be the correct construction of the statute. Wood had recovered judgment against Collins & Workman for $1,273, and garnished Edgar. Edgar answered that he held in his hands $1,000, in American gold, deposited by Collins & Workman, to be used by him in compounding with the creditors of Collins & Workman. The court, in passing upon the case, said: "We concur in this case in the construction which the circuit court gave to the sixth section of our act concerning executions. We do not understand that under this section a person having possession of property of the defendant in the execution can be garnished. That section is confined to debtors of the defendant, and in this respect is more limited in its operation than the corresponding section of the attachment law. No necessity is perceived for giving this statute a more enlarged construction. Gold and silver coin are subject to be seized on execution, like any other property not exempted by law; and the same vigilance which enables the creditor to garnishee the person in whose possession it happens to be found would enable him to levy directly upon the money. So, also, it could be reached by attachment, if the case in other respects authorized one. If the garnishee in this case had been the depositary of a horse or other chattel than the gold coin belonging to the defendant, it could hardly admit an argument that such a depositor was not a debtor of the defendant within the meaning of the act. The principle is not changed by the fact that the property was current gold coin, since an execution reaches that under the law. The only question, is, was Edgar, the garnishee, a debtor of Collins, the defendant? He had received from Collins $1,000 in American gold, with directions as to the disposition of it. He was in no sense a debtor to Collins." Nor is a factor having in his possession goods consigned for sale a debtor, within the meaning of the statute. Pratte v. Scott, 19 Mo. 625. In a garnishment under an execution it was held by the court: "In order that an indebtedness may be liable to garnishment, it must be shown to be absolutely due, as a money demand unaffected by liens or prior incumbrance or condition of contract." Scales v. Hotel Co., 37 Mo. 520; Weil v. Tyler, 38 Mo. 545, 43 Mo. 581. The above cases clearly indicate the construction that was given by the supreme court of that state, and their rulings upon it appear to have been uniform, until the statute itself was changed by legislation on adoption of the Code, in 1855, and, outside of the fact that we may regard them authoritative upon us under the rule before given, we do not see why the construction they put upon it should not be accepted by us as the correct one. This...