Virgelius v. Marcus

• Decision Date: 29 June 1915
• Docket Number: 4553.
• Citation: 150 P. 486,48 Okla. 527,1915 OK 531
• Parties: VIRGELIUS v. MARCUS ET AL.
• Court: Oklahoma Supreme Court

150 P. 486

48 Okla. 527, 1915 OK 531

VIRGELIUS v. MARCUS ET AL.

No. 4553.

Supreme Court of Oklahoma

June 29, 1915

Syllabus by the Court.

On the institution of an action in a justice's court, a garnishment was obtained, and the garnishee admitted funds in his hands sufficient to pay the debt. On the trial before the justice, judgment was rendered for a sum very much less than the plaintiffs claimed, and the defendant at once paid the judgment, and the justice released the garnishee, over the protest of the plaintiff, who gave notice of appeal, and also notified the garnishee not to pay the funds in his hands to the defendant; but, regardless of such notice, the garnishee did so. On appeal, the plaintiff recovered a much larger judgment. Held, that the plaintiff was entitled to an order in the county court, directing the garnishee to pay over the money which was in his hands when the garnishment was served, and which, by his answer, he admits was sufficient to pay the debt.

Commissioners' Opinion, Division No. 2. Error to County Court, Seminole County; T. S. Cobb, Judge.

Action brought in justice's court by William Virgelius, doing business as Havemeyer & Virgelius, against Joseph Marcus and the Farmers' National Bank of Wewoka, Okl., a corporation, garnishee. Judgment for plaintiff, and releasing the garnishee, on appeal to the county court, and plaintiff brings error. Reversed and remanded, with directions.

C. Dale Wolfe, of Wewoka, for plaintiff in error.

A. S Norvell and Fowler & Biggers, all of Wewoka, for defendant in error.

DEVEREUX C. (after stating the facts as above).

The question presented in this case is: Where a garnishment is issued, and the garnishee acknowledges property sufficient to pay the debt, and on the trial before the justice a judgment is rendered for a small sum for the plaintiff, and he gives notice of appeal, and notifies the garnishee that he will appeal, and files appeal bond in the form required by Rev. L. 1910, § 5466, whether the justice can discharge the garnishment and allow the garnishee to pay the money to the defendant, and be thereby discharged although on appeal the county court renders judgment for a much larger sum than was rendered in the justice court.

Rev. L 1910, § 5397, provides:

"The plaintiff in an action brought under this article may appeal to the district or county court of the county wherein said action is brought, from an order of a justice of the peace, dissolving an attachment, or releasing a garnishee, by filing an appeal bond as in other cases. When the plaintiff shall notify the defendant that he intends to appeal from the order of the justice of the peace dissolving an attachment, the property attached shall not be released until the expiration of ten days, after such order, and upon the giving of such appeal bond, such attached property shall be held to abide the order and judgment of the appellate court where the motion to dissolve the attachment shall be tried de novo."

This section was not taken from the Kansas Code, but was passed by the Legislature of the territory of Oklahoma in 1901 (Sess. L. 1901, p. 165). But it may be said that this section only applies to cases where the attachment is dissolved or the garnishment released prior to the trial of the main issue. It is not necessary to decide this question, for under the law, as it was prior to the passage of this act, and as we adopted it from Kansas, the judgment must be reversed. In Washer v. Campbell, 40 Kan. 747, 21 P. 671, the identical question presented in this appeal was passed on by the Supreme Court of Kansas in 1889. In that case it is said:

"It is true that in all cases where a judgment is rendered in favor of the defendant, either in a justice's court or in the district court, all attachment and garnishment proceedings then pending in the case will, by reason of the judgment, be discharged. Justice's Code, §§ 45, 46; Civil Code, §§ 220, 221. In this respect the rule of law in the two courts is precisely the same. But this discharge of the attachment and garnishment proceedings is only provisional, or conditional, depending for its

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