Tillinghast v. Johnson

• Decision Date: 15 April 1912
• Citation: 82 A. 788,34 R.I. 136
• Parties: TILLINGHAST v. JOHNSON.
• Court: Rhode Island Supreme Court

82 A. 788

34 R.I. 136

TILLINGHAST

v. JOHNSON.

Supreme Court of Rhode Island.

April 15, 1912.

Case Certified from Superior Court, Providence County.

Action by John A. Tillinghast, trustee, against Frank W. Johnson. On certified questions from the Superior Court. Questions answered, and papers remitted.

Green, Hinckley & Allen, of Providence (Frederick W. Tillinghast and Rush Sturges, both of Providence, of counsel), for plaintiff.

C. M. Van Slyck and Frederick A. Jones, both of Providence, for garnishee.

SWEETLAND, J. Four questions of law arising in this case have been certified by a justice of the superior court to this court for determination.

The first of these questions is: "First. If a safe deposit company has received for storage articles in a sealed parcel owned by the defendant in an action in assumpsit, which parcel the said company, at the time of the service upon said company of a writ of garnishment in said action, had in its hands or possession, and the contents of said sealed parcel are not of a nature exempt by law from attachment, is the said company chargeable as garnishee by reason of its possession of said sealed parcel: (1) If any of the officers or employes of said company were informed as to the contents of said package? (2) If none of the officers or employes of said company was Informed as to the contents of said package?"

This question is silent as to whether the garnishee has or has not rendered to the superior court an account in writing, as required by chapter 301, § 10, Gen. Laws 1909. If the garnishee has refused or neglected to render such account, it should be charged, not by reason of its possession of said sealed parcel, but because of such refusal or neglect. Chapter 301, § 20, Gen. Laws 1909.

If the garnishee has rendered an account in writing, or has appeared in the cause and has asked the court to determine whether or not it is chargeable as a trustee of the defendant, then, in the circumstances set out in the question, the garnishee is chargeable as trustee of the defendant, in the circumstances stated, in either subdivision of the question presented. Although from the argument of counsel before this court it appeared that they had a different understanding of the fact, we must presume from the question propounded by the superior court that there are at least two sealed packages involved in the case, as to the contents of one of which the garnishee is informed, and as to the contents of the other it is ignorant; otherwise, one of the subdivisions presented is a moot question, and should not have been certified for the determination of this court.

Chapter 298, § 5, Gen. Laws 1909, under the provisions of which these questions are certified, clearly intends that only questions of law which have in fact arisen in some proceeding pending in a lower court, prior to a trial of such proceeding upon its merits, shall be certified here for determination. To warrant the certification of a question of law, it is not enough that in the opinion of a justice of the superior or of a district court such question may arise later in the case. To be a question of law, the certification of which is contemplated by the statute, it must be one actually presented to said justice, and one the determination of which is necessarily involved in his ruling or decisions upon the particular phase of the case then before him. Fletcher v. Board of Aldermen, 33 R. I. 388, 81 Atl. 193. More is required than that it should be a question upon which the justice is unwilling, at the time of the hearing, to make an immediate ruling without further consideration; for, in the broad field of the law, there are many questions which, when first presented, may appear full of difficulty, but which upon deliberate examination lose their perplexity. Hence it is only after careful consideration, aided by the arguments and the researches of counsel, when the justice is then unable to reach a satisfactory conclusion, and the question still appears doubtful to him, that the justice can properly consider the question, in the language of the statute, as of "such doubt * * * that it ought to be determined by the Supreme Court before further proceedings." State v. Karagavoorian, 32 R. I. 477, 79 Atl. 111.

If, as in the matter now under consideration, the questions of law which arise must be based upon a particular state of facts found to exist, before the justice can properly frame his questions of law for certification, he must determine the underlying facts, otherwise the questions of law certified cannot be said to have arisen, and may never arise in the case.

By the terms of the question the contents of the sealed package or packages "are not of a nature exempt by law from attachment." To determine that fact the superior court must have found what said contents were. In the case of the package or packages, as to the contents of which the officers and employes of the garnishee are ignorant, the court could not have based this finding upon the return of the garnishee, but must have determined that fact upon some other evidence. From the arguments of both counsel before us, it would appear that there was nothing before the superior court which warranted the finding, and that the difficulty confronting the court and the counsel was as to how far the court's investigation might go in a proceeding which sought to disclose the contents of a sealed parcel, in the possession of a garnishee, when the contents of such sealed parcel were unknown to the garnishee. There is, however, no transcript of the testimony before us, and we must presume that the court below was justified in its finding as to the nature of the contents of such package or packages, from the testimony given before it in some hearing to determine whether the garnishee is properly chargeable; otherwise, that fact should not have been incorporated in the question. In the argument before us counsel for the garnishee has questioned the power of the superior court, under the statute, to carry its investigation as to the chargeability of a garnishee to the point of obtaining a discovery of the contents of a sealed package or a locked safety deposit box, belonging to the defendant and in the possession of a garnishee, especially if the garnishee is uninformed as to said contents.

By statute the jurisdiction of the trial courts in regard to such investigations has been extended from time to time. Under Gen. Stats. 1872, c. 197, §§ 12 and 13, the person making oath to the garnishee's return might be examined by either party upon written interrogatories, which were to be answered by said person in writing under oath, and the liability of the garnishee was to be determined entirely from the disclosures of the person making such oath. There was at that time no provision in the statute providing a civil liability for making a false answer or affidavit in garnishment proceedings. By Pub. Laws, c. 673, passed April 12, 1878, it was provided (section 4) that any person, summoned as trustee of a defendant in a case, making a false answer or affidavit, should be liable to the plaintiff in such case for any damages resulting to the plaintiff from such false answer or affidavit. Said chapter 673 also introduced the following additional provision in garnishment proceedings, now section 18, c. 301, Gen. Laws 1909: "Whenever any person shall be served with a copy of a writ by which he shall be sought to be charged as trustee of the defendant named therein, and such person shall appear and answer to the action so commenced as to whether he is, or is not, a trustee of the defendant, the court in which such action is brought or may be pending, shall determine whether the person so served is properly chargeable as the trustee of the defendant, and if chargeable, to what extent."

This provision was construed in Raymond v. Narragansett Tinware Co., 14 R. I. 310. In that case the garnishee by affidavit filed in the lower court disclosed funds in his hands. It was sought to have the garnishee discharged on the ground of a general assignment for the benefit of creditors made by the defendant before the garnishment. Under its interpretation of the provisions of said Pub. Laws, c. 673, § 1, at the time of the trial Pub. Stat. c. 208, § 10, the trial court heard oral testimony as to the validity of said assignment and discharged the garnishee. The Supreme Court held that "the court below committed an error in hearing the oral testimony. The proceeding in cases of garnishment is purely statutory. The statute prescribes the mode in which the liability of the garnishee is to be determined when he appears and makes affidavit, namely, by his affidavit, and by his written examination supplementing it, if such examination be taken." With reference to said section 10, c. 213, the court further said: "It provides that, when the garnishee appears and answers 'as to whether he is or is not a trustee of the defendant,' the court shall determine whether he is chargeable, and if chargeable, to what extent. The purpose of the provision was not to change the mode in which the liability of the garnishee is to be determined, but only to enable the plaintiff to have him charged in the original action. To allow his liability to be determined by extrinsic testimony would be to allow one case to be litigated in another, and that, too, without any pleadings or the right of jury trial. It cannot be supposed that this was intended. In the case at bar the only competent testimony before the court was the affidavit of the garnishee, Charles M. Raymond, and upon that the garnishee ought to have been charged."

At its next session the General Assembly (January session, 1884) passed Public Laws, c. 433. Sections 2 and 3 are as follows:

"Sec. 2. The answer sworn to by a trustee shall be considered true in deciding how far said trustee is chargeable, but either party to the suit, or any claimant of the estate...