Ringold v. Suiter.

• Decision Date: 24 March 1891
• Court: West Virginia Supreme Court
• Parties: CHARLESTON. Ringold v. Suiter.

35 W.Va. 186

CHARLESTON.Ringold

v.Suiter.

Supreme Court of Appeals of West Virginia.

Submitted January 17, 1891.

Decided March 24, 1891.

(Lucas, President, absent.)

1. Garnishment.

The remedy by garnishment is a creature of the statute, and limited by it,

2. Garnisiiment verdict.

A finding by a jury as to indebtedness of a garnishee to the attachment debtor and effects in his hands, rendered upon a suggestion of the insufficiency of the garnishee's answer, must be sufficiently definite and certain to warrant judgment against the garnishee. The finding here is too vague.

3. Evidence.

Evidence certified can not be read to find facts essential to judgment, which should have been, but were not, found by verdict.

4. Partners and Partnership Married Woman.

A partnership between a married woman living with her husband and another person is void. She can not be sued at law on a contract of such partnership; but the other member of the firm may be rendered liable therefor, and judgment given against him alone.

5. Garnishment.

An attachment served on a garnishee indebted to or having effects of the debtor binds debts existing or effects in the garnishee's hands at the date of service of the attachment, as also debts arising or effects coming to the hands of the garnishee until the answer of such garnishee, but not later than such answer.

6. Fraudulent Conveyances.

There may be a money recovery against a fraudulent grantee of property, who has sold such property to a bona fide purchaser and realized money therefrom, in favor of the defrauded creditor.

Campbell & Holt for plaintiffs in error, cited Code, c. 106, s. 5; Id. s. 14; Id. s. 16; 12 Gratt. 655.

Simms & Enslow for defendants in error, cited Drake Att, 589, 590 n.; Id. 458; Code, c. 116, s 14; 20 W. Va. 521; Code, c. 131, s. 5; Bump. Fraud. Conv. 567-569; 2 Cowp. 432; 6 Wall. 312; 7 Mo. App. 450; 4 Johns. 536; 1 Johns. Ch'y 478; Twyner's Case 1 Lead. Cas.; 3 Ohio St. 246; 112 U. S. 216; 12 How. (U. S.) 39-46; 85 Ind. 434; 2 Thorap. Tr. § 26; 3 Rob. Pr. 520; 1 Wash. 372.

Brannon, Judge:

In an action at law by F. R, Ringold & Co. against J. K. Suiter in the Circuit Court of Cabell county an attachment issued and was served on Miller & Ingalls, as garnishees, on 13th November, 1889, and on 9th December, 1889, said garnishees answered that they were not indebted to Suiter, but that on 4th of November, 1886, said firm had bought certain goods and accounts of Sinter for five thousand dollars, for which they were to pay by giving negotiable notes, and that they had given such notes. The plaintiffs suggested that the garnishees had not fully answered, and the court made an order directing that the question of the indebtedness of said garnishees be submitted to a jury, as provided by statute, to ascertain and determine what effects, if any, said garnishees had in their hands at the date of the service of the attachment, and that the jury should determine, try and return their verdict on the following issues: "(1) Did the garnishees, Mrs. Gertrude Ingalls and W. C. Miller, doing business as partners, owe anything to or have any effects of the said J. K. Suiter in their possession at the date of the service of the attachment herein on them? (2) Was the sale of the goods of J. K. Suiter to Ingalls and Miller upon good conditions, and valid? (3) Did the said Ingalls and Miller, or either of them, at the time they purchased the stock of goods of J. K. Suiter, have any knowledge the defendant J. K. Suiter was in debt, and that the stock of goods was not paid for? (4) Was there any intent on the part of Ingalls and Miller or W. C. Miller to hinder, delay or defraud the creditors of J. K. Suiter at the time the sale was made? (5) Did Ingalls & Miller, or either of them, have knowledge that Suiter was selling his stock of goods to them to prevent his creditors levying on it for their debts?" On March 28, 1890. the plaintiffs propounded to the jury a sixth or additional interrogatory, as follows: "Was W. C. Miller at any time indebted to J. K. Suiter between the date of service of attachment in this case, viz: November 13, 1889, and the date of his answer, this March 28, 1899? If so, in what sum?"

The jury not agreeing, afterwards another trial was had, and, after the jury had fully heard the evidence and argument of counsel, the plaintiffs, against objection, propounded to the jury the sixth interrogatory given above. The jury returned the following verdict. "Answer to firstinterrogatory, Yes; answer to second interrogatory, No; answer to third interrogatory, Yes; answer to fourth interrogatory, Yes; answer to fifth interrogatory, Yes; answer to the additional or sixth interrogatory, Yes. One thousand five hundred and eighty five dollars." The defence moved the court to set aside the findings, because contrary to law and evidence, and, this motion having been overruled, the defence moved the court to arrest judgment because the findings and answers of the jury were too vague and uncertain to base judgment on; but the court overruled this motion, and rendered judgment against W. C. Miller, requiring him to pay two hundred and sixty nine dollars and seventy five cents and costs to the sheriff holding the attachment. Miller sued out a writ of error.

I have struggled to sustain the judgment in this case, rendered after two trials, but I am unable to do so. A judgment against a garnishee must have something on which to rest, either an answer of the garnishee, sufficient to warrant it, or a verdict of a jury of legal certainty, finding facts to warrant judgment. Garnishment is purely a creature of statute; and we can only follow the procedure pointed out by the statute; and it is not within the rules of construction governing common-law actions. It can not be resorted to except where the statute expressly authorizes it; and when the statutory limits have been reached without accomplishing the purposes for which it was invoked, we can not extend its operations into new fields or contrive new means of applying it to the exigencies of the particular case. Wade, Attachm. § 333; Drake, Attachm. § 451a.

Our statute (section 14, c. 106, Code 1887) provides that when a garnishee under an attachment appears, he shall be examined under oath; and that, if it appear from his ex- ami nation that at or after service of the attachment he was indebted to the defendant or had in his possession or control effects of the defendant, the court may order him to pay the money due from him, and deliver the effects in his hands. Section 16 provides that, if the plaintiff suggest that the garnishee has not made a full disclosure, the court shall impannel a jury to inquire as to such debts or effects; and as to any liability on the garnishee established by the verdict the court shall proceed, as if it had been confessed by the garnishee. Where a garnishee does not appear the court may hear evidence under section 15 to establish his liability; but where, as in this case, the garnishee answers, and the answer does not warrant judgment, the only resource given by the statute is an inquiry by a jury, and its verdict, either alone or in connection with the answer, constitutes the only basis for judgment against the garnishee.

Now, omitting the sixth interrogatory, the remaining interrogatories and their answers will not warrant a judgment for money, for they give no amount, Now bring to the aid of those five interrogatories the answer of the garnishees. Then we have the facts that the garnishees purchased of Suiter, the debtor, a stock of goods at five thousand dollars, and had them in possession, and that this sale was fraudulent as to creditors. Did this justify a judgment for money? If there be a fraudulent conveyance of property for a fixed consideration, it is certain that the property itself can be subjected, because the conveyance is void as to the creditor. The creditor treats it as void, and against him the purchaser acquires no title. But can the creditor waive relief as against the property, and take a judgment against the purchaser for the purchase-money which he agreed to pay? It would seem at first view that there would be strong reason to say that he could do so; but when we reflect that there is not the slightest privity between the creditor and the fraudulent purchaser, and that the only theory, on which the creditor has right in the matter, is that property liable in his debtor's hands to his debt has been diverted from its payment by a sale to all intents void under the law as to him, just as if it had never been made, it is difficult to see how he can claim the purchase-money under the sale, thus ratifying it.

It is true, the Supreme Court of Ohio, in Bradford v. Beyer, 17 Ohio St. 388, has held that in such case the creditor might go against the goods, or compel the fraudulent vendee to account for the purchase-price of the goods. No authority is cited to sustain the proposition. I find no cases to support it. If this were so, we could justify the money-judgment in this case. Rut we do not think the position tenable. If the fraudulent purchaser has sold the property to an innocent purchaser, so that it can not be reached, the injured creditor may have a moneyrecovery to the value of the property against the purchaser, because the purchaser has thus realized from the sale of property wrongfully diverted from the payment of the seller's debts, and he can not complain if he be made responsible.

This Court, in Hinton v. Ellis, 27...