Rothschild v. Burton
| Decision Date | 29 September 1885 |
| Citation | 57 Mich. 540,25 N.W. 49 |
| Court | Michigan Supreme Court |
| Parties | ROTHSCHILD v. BURTON. |
Error to Wayne.
Dickinson, Thurber & Hosmer, for plaintiff.
Griffin & Warner, for appellant.
On the seventh day of March, 1884, the defendant was indebted on an open account for goods sold and delivered to the firm of Rothschild & Sittig, composed of Raphael Rothschild and Charles Sittig, in the sum of $164.15. On that day Rothschild & Sittig assigned the account to the plaintiff. March 30 1884, Leopold Erstein and Marx Erstein, simple contract creditors of Rothschild & Sittig, commenced a suit by attachment against them in the federal court, in Detroit, and on the seventeenth of June, 1884, recovered judgment in their suit for $686.62. Prior to the rendition of this judgment and on the twenty-fifth day of April, 1884, they caused garnishee proceedings to be commenced against the defendant Nathan Burton, who was served the same day with the writ of garnishment, and on the twenty-first day of May thereafter defendant filed a disclosure admitting the indebtedness on the day of the service of the writ, but states that previous thereto he was notified of the assignment of such indebtedness to plaintiff by the assignors, and that if such assignment was valid, he did not, on the day the writ of garnishment was issued, owe to the firm of Rothschild & Sittig any sum of money whatever. On the same day, after the disclosure was filed, the attorneys for the plaintiffs in attachment filed in the United States circuit court a demand for a statutory issue in the cause, and an issue was therefore formed between the parties, whereunder said plaintiffs sought to recover the said indebtedness mentioned in the disclosure. The plaintiffs claim the said assignment is fraudulent as against their right to have the indebtedness applied to the payment of their judgment against Rothschild & Sittig. The Ersteins obtained their verdict on the eleventh, and their judgment in their principal suit on the seventeenth, day of June, 1884. On the fourteenth day of June the circuit court of the United States made an order in said suit that Amelia Rothschild, the plaintiff in this case, "do appear in said court and maintain her rights under the assignment to her in such manner and form as she may deem proper." She did not appear, and July 5th the statutory issue was in the federal court, and judgment rendered against the garnishee defendant for the sum of $165.14, and further directed that when the money was collected it should be paid into court, subject to the further order of the court.
The suit in this case was commenced in May, 1884, before a justice of the peace in Detroit, to recover the indebtedness assigned to her by Rothschild & Sittig. Before the justice the defendant set up in defense by plea in abatement the proceedings instituted against him in the garnishee suit, set forth down to the time of the commencement of this suit. The plaintiff filed a demurrer to the plea before the justice, which was sustained. The defendant then pleaded the general issue, and upon the trial the justice rendered judgment for the plaintiff. The case was then taken to the circuit court for the county of Wayne by appeal. The defendant then filed a plea puis darrein, setting up the entire proceedings to judgment had against him in the United States court, as hereinbefore set forth, and the payment of the money into court as required in said judgment, as a bar to the plaintiff's suit. A trial of the case was then had before a jury, who, under the instructions of court, returned a verdict for the plaintiff, and the case is before us on error. No additional facts to those above stated appeared upon the trial.
This case presents very strikingly the rigor and hardship to which garnishees are not unfrequently subjected under the provisions of the present law. Here the garnishee is brought before courts in different jurisdictions because he owes an honest debt, and his creditor happens to be a debtor to those who are entire strangers to the garnishee, having no business relations whatever with him, and although he is able, ready, and anxious to pay his indebtedness without any neglect or delinquency on his part, he is compelled to appear in two courts and litigate two suits, made liable for costs in each case, or may be to an extent beyond that of the original indebtedness, and then held liable to pay the latter in each suit. The judgment in one jurisdiction not being appealable, however erroneous it may be, he has no means to escape therefrom.
It is not surprising that courts have felt it their duty to pronounce the garnishee proceeding a harsh one, and restrict it to cases within the letter of the law. This does not properly characterize its effect in certain cases, under certain of its provisions. An actual fraud upon the rights of the garnishee is not unfrequently the result of some of the provisions of the statutes, and it is to be hoped that this seriously oppressive feature may at an early day receive the remedial attention which alone can be given by the legislature of our state, that it may be so modified that a poor debtor, who is ready and willing to pay his debt when due,...
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