Schloredt v. Boyden

Decision Date22 March 1901
CourtWyoming Supreme Court

ERROR to the District Court, Crook County, HON. CHARLES W. BRAMEL Judge of the Second District, presiding.

Proceedings in aid of execution. The garnishee answered that he had money of the judgment debtor in his hands. The wife of the debtor filed a petition to be made a party, claiming that the money in the hands of the garnishee was her property. The petition was received without objection, and testimony was received also without objection, in support of the petition, and the finding was in favor of the claimant. The judgment creditor prosecuted error. The other material facts are stated in the opinion.


Nichols & Adams, for plaintiff in error, contended that the testimony did not support the claim that the money belonged to the wife of the debtor, and that her claim to the money amounted to a fraud upon the creditors of the debtor: citing, 8 Ency. L 851; Triplet v. Graham, 12 N. W., 143; Murch v. Swenson, 42 id., 290; Wolford v. Farnham, 46 id., 295; Peckenbaugh v. Cook, 16 id., 530; Glass v. Sutavern, 61 id., 579; Salisbury v. Burr, 46 P. 270; Wells v. Schuster, 48 id., 809; Culver v. Graham, 3 Wyo., 211; Stevens v. Carson, 46 N. W., 655; Horton v. Dewey, 10 N. W., 599; Bump on Fraud. Conv., 269.

H. A. Alden, for defendant in error, contended that the proceedings were merely interlocutory, and did not admit of error proceedings; that the claimant was one of original parties to the main suit, and was as such entitled to come in and have her right to the money decided; that there was no question of fraud; and that the record does not show a judgment, but a finding only.




This case presents for review an order made in certain proceedings in aid of execution. Fred Schloredt had secured a judgment in the district court for Crook County, against John B. Boyden, upon which a balance of $ 728.18 remained unpaid; and an execution issued thereon had been returned "no property found." Upon his application, under the provisions of Section 3943 Revised Statutes, the judge of said court made an order requiring C. L. Calvert, Clerk of the Court, to appear and answer concerning any money or property in his possession belonging to the judgment debtor.

The garnishee appeared, and answered, upon oral examination, that he had $ 525 in his hands belonging to John B. Boyden. On the same day that said answer was taken, and either before it was taken or immediately thereafter, but before any order was made thereon, one Anna Boyden, the wife of the judgment debtor, and who had, with him, been a defendant in the principal case, but against whom there was no personal judgment, filed a petition setting forth that the money in the possession of the garnishee belonged to her, and asking to be made a party to the proceedings, and that the garnishee be ordered to return the money to her. The plaintiff, Schloredt, filed an answer to her petition denying its allegations, and alleging that her claim to the money was made fraudulently, to hinder, delay, and prevent the judgment creditor from collecting his claim; and charging that the money belonged to John B. Boyden.

In addition to the examination of Calvert, the garnishee, John B. Boyden and Anna Boyden testified as witnesses; whereupon the court found that Anna Boyden was entitled to interplead in the case, and be made a party thereto; and that the money in the hands of the garnishee was her money; and ordered that the same be delivered to her by the garnishee.

The order and judgment was excepted to by the plaintiff, and a motion to set aside the findings and judgment was filed immediately. The motion was at once overruled, exception preserved to the ruling, and if there is a bill of exceptions in the record, it would appear to have been settled and allowed the same day.

Although some of the steps taken, and some rulings of the court, were based, apparently, upon an erroneous conception of the character and scope of the proceeding, there are several reasons why this court cannot vacate or disturb the order complained of. An intelligent explanation of those reasons will require reference to a few of the statutory provisions touching the subject of supplemental proceedings, and an inquiry concerning their nature and effect.

Whenever a judgment debtor has not personal or real property on which to levy an execution, any equitable interests he may have in real estate, in a joint stock company, or in any money contract, claim, or chose in action, due or to become due to him, or in any judgment, or any money, goods, or effects which he has in the possession of any person, body politic or corporate, may be made subject to the payment of the judgment by action. Rev. Stat., Sec. 3932. The proceedings herein were not prosecuted under that section.

In subsequent Sections 3940 to 3956 a summary method is provided for the examination of the judgment debtor, as well as of one who is alleged to have property of the debtor in his possession, or to be indebted to him. After the return, unsatisfied, of an execution, the judge may order the debtor to appear and answer concerning his property. Sec. 3940. After issuance of an execution, upon a certain showing, the debtor may be ordered to appear and answer. Sec. 3941. After return of an execution upon proof, in writing, by affidavit, or otherwise, to the satisfaction of the judge that a person has property of the judgment debtor, or is indebted to him, the judge may be an order, require such person to appear and answer concerning the same. Sec. 3943. The service of the order binds the property in the possession of the one so ordered to appear and served with the order from the time of the service; and such person becomes liable to the judgment creditor for all property, money, and credits in his hands, belonging to the judgment debtor, or due to him, from the time of service. Id. Upon proof of certain facts such order upon a third person may be issued before the return or even the issuance of an execution. Id. The same section provides that the judge may also require notice of the proceeding to be given to any party in the action in such manner as may seem to him proper.

This proceeding was instituted by virtue of the provisions of Section 3943. The extent of the final authority of the judge in a proceeding prosecuted under that section, and the scope of the proceeding itself, is set forth in Sections 3951 and 3952. They are as follows:

"Sec. 3951. The judge may order any property of the judgment debtor, or money due him, not exempt by law, in the hands of either himself or other person, or of a corporation, to be applied toward the satisfaction of a judgment."

"Sec. 3952. The judge may, by order, appoint the sheriff of the proper county, or other suitable person, a receiver of the property of the judgment debtor, and he may also, by order, forbid a transfer, or other disposition of, or interference with, the property of the judgment debtor not exempt by law."

Up to the time of the hearing the proceedings taken in this case seem to have been in conformity with law. It then became the duty of the person served with the order of the judge to appear and answer concerning the property of the judgment debtor in his hands. He did appear and make answer, admitting that he had in his possession certain money belonging to such debtor. Had nothing else occurred, an order would have been proper to the effect that the money be applied toward the satisfaction of the judgment, and if, thereupon the money had been voluntarily paid into court or to the sheriff or other receiver appointed to receive it, the same could at once have been applied upon the judgment. If, however, the garnishee should not voluntarily pay the money, or deliver the property in his hands as directed by the court or judge, it would become necessary for the receiver who might be appointed, or the judgment creditor, to recover it, by resorting to an appropriate action for that purpose. In this respect the right of the judgment creditor is analogous to that of an attachment plaintiff, which was considered in the case of Stanley v. Foote, recently decided by this court; except that in a proceeding in aid of execution a receiver may be appointed who would be entitled to enforce the liability of the garnishee. This is the construction given to the statute in Ohio, from which State the statute was taken, and in Kansas, where the same statute was adopted, as will appear by reference to the cases we shall cite.

In Union Bank of Rochester v. Union Bank of Sandusky, 6 Ohio St. 254, the court construed the provision of the section of the Ohio code answering to our Section 3951, in respect to the character of the order authorized where the answer of the garnishee discloses money or property in his hands belonging to the judgment debtor. The court held that the judge was not to order the payment of a debt, but that the order should be that the money or property be applied to the judgment. It was said: "There is a manifest difference between an order to pay a debt, and an order settling the right of the judgment creditor to the application of the proceeds of the debt. The latter is all that was intended by Section 467 of the code. It authorizes the judge to order that either property, or a debt due the judgment debtor, be applied to the satisfaction of the judgment; thus fixing the right of the judgment debtor, so that when possession of the property is obtained, or the debt collected, by the sheriff or receiver, under Section 468, the proceeds may be duly applied to the discharge of the judgment."

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