State ex rel. American Piano Co. v. Superior Court for King County

• Citation: 105 Wash. 676,178 P. 827
• Decision Date: 28 February 1919
• Docket Number: 15220.
• Court: United States State Supreme Court of Washington
• Parties: STATE ex rel. AMERICAN PIANO CO. et al. v. SUPERIOR COURT FOR KING COUNTY.

178 P. 827

105 Wash. 676

STATE ex rel. AMERICAN PIANO CO. et al. v. SUPERIOR COURT FOR KING COUNTY.

No. 15220.

Supreme Court of Washington

February 28, 1919

Department 1.

Original application by the State, on relation of the American Piano Company and J. H. Shale as Trustee, for writ of prohibition to the Superior Court of King County. Writ denied.

E. P Whiting, of Seattle, for appellants.

Charles H. Hartge and Preston, Thorgrimson & Turner, all of Seattle for respondent.

TOLMAN J.

On or about the 23d day of August, 1918, one W. W. Hay, as trustee in bankruptcy of Jones-Rosquist Piano Company, commenced an action in the superior court for King county against the relators herein, for the purpose of recovering a judgment for $4,000 and interest, alleged to be the value of certain personal property transferred by said Jones-Rosquist Piano Company, while insolvent, and within four months prior to its being adjudicated a bankrupt, alleging knowledge of such insolvency on the part of relators, and that such transfer created an unlawful preference in favor of the relators under the terms of the bankruptcy law.

At the same time an affidavit for garnishment was filed, garnishment writs were issued and served upon numerous garnishee defendants, two of whom answered, one admitting an indebtedness to the relator J. H. Shale, as trustee, and the other admitting possession of certain personal property belonging to the relator American Piano Company.

Relators, defendants in the original action, being nonresidents of this state, service was sought to be obtained by publication of summons; and thereafter relators appeared in that action specially only, and moved the court to quash the purported service of summons upon each of them, and to quash the writs of garnishment, for the reason alleged, that such writs were unlawfully issued, and the court was without jurisdiction in the premises. The motions to quash being denied, relators come here seeking a writ of prohibition forbidding further proceedings in the cause.

The sole question raised by the petition is whether or not the writs of garnishment were lawfully issued. If so, the superior court has jurisdiction to proceed; if not, it has no jurisdiction, and can acquire none by the publication of summons. The garnishment statute, section 680, Rem. & Bal. Code, provides that the clerks of superior courts may issue writs of garnishment:

'1. Where an original attachment has been issued in accordance with the statutes in relation to attachments;

'2. Where the plaintiff sues for a debt and makes affidavit that such debt is just, due and unpaid, and that the garnishment applied for is not sued out to injure either the defendant or the garnishee.'

And it is argued here that the word 'debt,' in its legal acceptation, has a clear and definite meaning, defined by Blackstone as:

'The legal acceptation of debt is, a sum of money due by certain and express agreement, as: By a bond for a determinate sum; a bill or note; a special bargain; or a rent reserved on a lease; where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it.' Blackstone's Com. (Lewis' Ed.) *154.

And such, no doubt, is the technical meaning of the word. But is it used in that narrow and restricted sense in our garnishment statute? Prior to the act of 1893, garnishment was effected only under a writ of attachment or an execution. And in all cases where a writ of attachment issued, debts, credits, and other personal property incapable of manual delivery might be attached by serving an attachment writ upon the person having possession of such personal property. 2 Hill's Code, § 300. But unless ground for an attachment existed, or the creditor had reduced his claim to judgment, there was no method by which the creditor could reach and hold money or property belonging to the debtor in the hands of a third person. The Attachment Act prior to 1893, as now, required that an indebtedness exist in favor of the attaching creditor; and by the Garnishment Act of 1893 it clearly appears that the Legislature did not intend to restrict any right then existing, because it clearly preserved all existing rights by providing in subdivision 1, as heretofore quoted, that the writ of garnishment should issue in all cases where an original attachment had issued, and then to enlarge the scope of the writ, provided in subdivision 2, in effect, that when no ground for attachment existed, yet the writ should nevertheless issue where the plaintiff sues for a debt. We are convinced, therefore, that the word 'debt' in the garnishment act was intended to mean the same identical thing as the word 'indebtedness' in the Attachment Act. In 36 Cyc. 1147, it is said:

'Statutes in pari materia are those which relate to the same person or thing, or to the same class of persons or things. In the construction of a particular statute, or in the interpretation of any of its provisions, all acts relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law. The endeavor should be made, by tracing the history of legislation on the subject, to ascertain the uniform and consistent purpose of the Legislature, or to discover how the policy of the Legislature with reference to the subject-matter has been changed or modified from time to time.'

And again at page 1150 of the same volume:

'Whenever a Legislature had used a word in a statute in one sense and with one meaning, and subsequently uses the same word in legislating on the same subject-matter, it will be understood as using it in the same sense, unless there be something in the context or the nature of things to indicate that it intended a different meaning thereby.'

To hold that the writ of garnishment will issue only when a debt exists in the technical sense of the term would be clearly to deny the plain legislative intent, and to limit the office of that writ unduly. Holding then that the word 'debt' in the Garnishment Act is as broad as the word 'indebtedness' in the Attachment Act, we come to the real question in this case, which is, will either attachment or garnishment lie in an action brought to set aside a preference under the Bankruptcy Act? Cases are not wanting which hold that the wrongful conversion of personal property will not authorize the issuance of a writ of attachment, and that one may not waive the tort and sue in assumpsit so as to give jurisdiction.

See Finlay v. Bryson, 84 Mo. 664; Sonnesyn v. Akin, 12 N.D. 227, 97 N.W. 557; Welch v. Renfro, 42 Tex.Civ.App. 460, 94 S.W. 107; Baxter v. Nash, 70 Minn. 20, 72 N.W. 799.

Upon the other hand, the great weight of authority, and the better reasoning, we think, is evidenced by the more modern doctrine, to the effect that under statutes limiting the right of attachment to suits on claims arising on contract the tort may be waived, and the claim will be considered as arising from an implied contract. In Judge v....