Perkins v. Guy

• Decision Date: 31 August 1873
• Citation: 2 Mont. 15
• Parties: PERKINS, appellant, v. GUY, respondent.
• Court: Montana Supreme Court

2 Mont. 15

PERKINS, appellant,

v.GUY, respondent.

Supreme Court of the Territory of Montana.

August Term, 1873.

Appeal from First District, Gallatin County.

THE demurrer to the complaint was sustained by MURPHY, J., on the ground that the same did not state facts sufficient to constitute a cause of action, and Perkins appealed. The sections of the Civil Practice Act, approved December 23, 1867, referred to in the opinion, are embodied in the Practice Act, approved January 12, 1872.

S. WORD and J. J. DAVIS, for appellant.

Appellant had no remedy under laws of Territory, and this is a proper case for a bill of interpleader. 1 Bouv. L. Dict., “Interpleader;” 1 Danl. Ch. 64; Richards v. Salter, 6 Johns. Ch. 445; Story's Eq. Pl., § 297c; Story's Eq. Jur., § 806; Angell v. Hadden, 15 Ves. Jr. 244; Langston v. Boylston, 2 Id. 109; Bedell v?? Hoffman, 2 Paige's Ch. 199. Appellant can be compelled to pay a debt twice, if he cannot maintain this action. Atkinson v?? Manks, 1 Cow. 691.

Appellant's offer to bring money into court is sufficient. It is not necessary to pay it into court. 2 Story's Eq. Jur., § 809; 2 Danl. Ch. 1670; Mohawk & H. R. Co. v. Clute, 4 Paige's Ch. 385.

Appellant paid all costs in suit against Robinson. He had no interest in money in his hands owing by him, and there was a doubt upon his mind as to the rights of the different claimants to the money. This is sufficient to sustain the bill. Story's Eq. Pl., § 297c; Mohawk & H. R. Co. v. Clute, 4 Paige's Ch. 385.

PAGE & COLEMAN, for respondents.

Each of the parties, asked to interplead, claim, by distinct legal titles, a sum in appellant's possession. The bill is defective. Robinson, the judgment creditor of appellant, is not made a party. Only the claimants to a portion of the judgment are made parties. The uncertainty with which the appellant is troubled, is ignorance of legal rights of claimants. “Every man is presumed to know the law.” The bill does not show that appellant was in danger of being forced to pay judgment more than once. A judgment cannot be reached by a garnishment of the judgment debtor. Sharp v. Clark, 2 Mass. 91;Prescott v. Parker, 4 Id. 170;Franklin v. Ward, 3 Mason, 136;Clodfelter v. Cox, 1 Sneed, 330;Trombly v. Clark, 13 Vt. 118;Clymer v. Willis, 3 Cal. 363.

A judgment cannot be so subjected under an attachment from another court, especially an inferior one. Drake on Attach., § 625, and cases cited.

The bill does not show any privity of contract or interest between appellant and judgment creditor and lien holders. Claimants assert distinct legal titles. Story's Eq. Jur., § 820.

Appellant had a remedy at law. Cod. Sts., § 598, p. 157.

KNOWLES, J.

This is a bill of interpleader, brought by the plaintiff to compel the defendants to set up their rights, and have the same determined, to certain moneys in the possession of plaintiff.

The facts set up in the bill are substantially as follows: On the 1st day of November, 1871, W. D. Robinson recovered a judgment against the plaintiff in the district court of Gallatin county, for the sum of $181.50, and costs of suit. On the 2d day of November of the same year, the defendants, Fridley, Hopping and McKenzie, each commenced suit against Robinson, and, as auxiliary thereto, had issued a writ of attachment, and a garnishee process was served upon the plaintiff, Perkins, on the 3d day of said month, warning him not to pay the said judgment to Robinson. These last suits were commenced in the probate court of the said county of Gallatin. On the last-named day, the defendant made answer to the said garnishee process, that he was indebted in the sum aforesaid upon the said judgment. On the 4th day of the said November, Robinson caused an execution to issue out of the office of the clerk of the district court for Gallatin county, upon said judgment. On the 13th day of said month, the sheriff of said county, the defendant Guy, by virtue of this execution, levied upon the property of the said Perkins, to satisfy the same. After the issuing of the said execution, the defendants, Page and Coleman, attorneys for the said Robinson, gave a written notice to Perkins that they had an attorney's lien upon said judgment, in favor of Robinson, to the amount of $150; and forbade the plaintiff from paying that amount of said judgment to Robinson, or to the sheriff, Guy, or to Fridley, Hopping and McKenzie. Before the filing of this bill, the said attaching creditors had obtained judgment in the probate court against Robinson, in the suits aforesaid, and were seeking to enforce the same by virtue of the said garnishments against the plaintiff.

Under this state of facts was the plaintiff entitled to maintain this action? The court below held that he was not, and this ruling is assigned as error. Whether or not he could maintain this action depends upon whether the defendants, Fridley, Hopping and McKenzie, could garnishee the judgment Robinson had recovered against Perkins. If they could, then this action was properly brought; if not, then the ruling of the court below was correct, and the bill properly dismissed.

Section 124, page 157, of the Practice Act, which was in force at the date of the service of the aforesaid writ of attachment, provides that “The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profits thereon, and all debts due such defendant,” may be attached.

The fifth subdivision of section 125 of the same act, provides how debts may be attached. Section 127 of this act provides that from the date of the service of a copy of the writ, and notice provided for in the aforesaid fifth subdivision of section 125, upon the debtor of the defendant, unless he pay such debt to the sheriff, the said debtor shall be liable to the plaintiff for the amount of such debt until the attachment be discharged, or any judgment recovered by the plaintiff be satisfied. Section 130 of the said act provides that “Debts and credits attached may be collected by him (that is the sheriff), if the same can be done without suit. The sheriff's receipt shall be a sufficient discharge for the amount paid.”

Section 208 of the Practice Act of 1867 is as follows:

“Satisfaction of a judgment may be entered in the clerk's docket, upon an execution returned satisfied, or upon an acknowledgment of satisfaction, filed with the clerk, made in the manner of an acknowledgment of a conveyance of real property by the judgment creditor, or within one year after the judgment by the attorney, unless a revocation of his authority be previously filed. Whenever judgment shall be satisfied in fact, otherwise than upon execution, it shall be the duty of the party or attorney to give such acknowledgment; and, upon motion, the court may compel it, or may order the entry of satisfaction to be made without it.”

Between this section and the clause quoted above from section 130, if a judgment can be attached there is presented a conflict, for this section provides how a judgment may be satisfied. But if the sheriff's receipt to a person, who has paid him a judgment debt, which has been attached, is a satisfaction of the same, then there is another manner of satisfying a judgment than that prescribed in section 208.

Again, let us examine this clause of section 130: “Debts and credits attached may be collected by him (that is the sheriff), if the same can be done without suit.” Here is an intimation that the debts that may be attached may be collected by suit.

How is a judgment to be collected by suit? Again, section 127 provides that, after the service of the writ and notice, the person garnisheed shall be liable to the plaintiff for any debt he owes the defendant. How is the plaintiff to enforce this liability? He certainly cannot recover another judgment against the garnishee, for the demand is a judgment already. There is no provision of law for the plaintiff in the attachment suit, or the sheriff stepping into the shoes of the defendant in the attachment suit, and ordering execution to issue on a judgment in his favor. There is doubt enough thrown upon the intention of the legislative assembly in the language used by the different sections of the statute above referred to, to demand of a court a...