Waterbury v. Board of Com'rs of Deer Lodge County

• Decision Date: 15 June 1891
• Citation: 26 P. 1002,10 Mont. 515
• Parties: WATERBURY v. BOARD OF COMMISSIONERS OF DEER LODGE COUNTY.
• Court: Montana Supreme Court

26 P. 1002

10 Mont. 515

WATERBURY v. BOARD OF COMMISSIONERS OF DEER LODGE COUNTY.

Supreme Court of Montana

June 15, 1891

Appeal from district court, Deer Lodge county; CHARLES S. MARSHALL Judge.

The plaintiff herein brought an action in the justice's court against Thomas Harnon. The defendant in that action was at that time a deputy-sheriff of Deer Lodge county, working in that capacity upon a fixed salary. The action before the justice of the peace was upon a money demand, and the plaintiff therein obtained, in the ordinary manner, a writ of attachment against the property of the defendant Harnon. In pursuance to this writ of attachment the constable levied upon and attached in the possession of, and under control of the defendant herein the sum of $347.81 belonging to said Harnon, and due and owing him from the defendant herein, by delivering true copies of the writ, and leaving the same with the chairman and clerk of the board of county commissioners and treasurer of the county, together with notices that all debts owing by the county to said Harnon, and all credits and other personal property in the possession of said county belonging to said Harnon, were attached in pursuance to said writ. Afterwards plaintiff recovered judgment against Harnon in the justice's court for $210.40. Execution was issued which was served upon the county, with similar notice of garnishment as in the service of the writ of attachment; that at the time of the service of said respective writs the said county had in its possession and was owing said Harnon $347.80, and answered the writ by its chairman and clerk to that effect. The judgment against Harnon has not been satisfied, and the county defendant herein has not paid any part of said money to plaintiff in that action. The said sum of money was due from the county to said Harnon for services as deputy-sheriff and expenses about said office. At the time of the levy the county had allowed said sum to Harnon. The case was tried upon an agreed statement of facts, of which the foregoing is a summary, and the decision of the district court was asked upon the point whether the defendant herein under those facts and the law, can be charged as garnishee as to the sum of $347.80, or any part thereof. The district court gave judgment for the county, and plaintiff Waterbury appeals from that judgment. The portion of the laws subject to construction are as follows: Code Civil Proc. § 189. "All persons having in their possession or under their control any credits or other personal property belonging to the defendant, or owing any debts to the defendant, at the time of service upon them of a copy of the writ and notice, as provided in the last section, shall *** be liable to the plaintiff for the amount of such credits," etc. A statutory construction of the word "person" is found in section 202, Gen. Laws, which says: "The word 'person' may extend and be applied to bodies politic and corporate." Section 744, Gen. Laws, provides "that each organized county of the state shall be a body politic and corporate, and, as such, shall be empowered for the following purposes: To sue and be sued; to make all contracts and do all other acts in relation to the property and concerns [of the county] necessary to the exercise of its corporate or administrative powers; to exercise other and further powers as may be specially conferred by law," etc. The question now before this court is simply whether the county defendant is liable as garnishee under the facts agreed upon and the law as cited.

George B. Winston, for appellant.

Henri J. Haskell, Atty. Gen., and W. S. Shaw, Co. Atty., for respondent.

DE WITT, J., (after stating the facts as above.)

This action arose while this commonwealth was a territory of the United States, and the laws applicable to the contention are set forth in the introductory statement. The garnishment of towns, cities, and counties has been the subject of such conflicting views in different states, and being a first impression in this court, we incline to adopt the language of Judge WELCH in City of Newark v. Funk, 15 Ohio St 463: "In other states authorities are quite conflicting so much so, that we do not feeel bound by any of them, and see nothing to prevent us from deciding the question as an original one, according to our own views of public policy and the meaning and intent of the statute." This conflict to some extent, but by no means wholly, dissolves, upon an inspection of the statutes upon which the decisions are made. In 2 Wade, Attachm. §§ 345, 419, are marshaled the states holding diverse views, and the author concludes that the majority is against holding municipal corporations as garnishees. But the author doubts the soundness, and questions the reason, of the rule. There is eminently respectable opinion upon the other side of the question. An analysis of the cases would be interesting, but we will not enter upon it, by reason of the direct conflict of the decisions, even upon similar statutes; and, furthermore, we are of opinion that the statutes of this state are so much more explicit upon the subject under consideration, that many of the decisions of sister states are inapplicable, and that, in view of our statute, the weight of authority is not against the liability of a county as a garnishee. It is not doubted that the statute may exempt a county from the process of garnishment. Our statute does not so exempt a county; and, if they are to be exempted, the authority must be found elsewhere than in the express declaration of the statute. Again, the statute may subject a county to this process. Now what do we find in the written law? It declares that "all persons" having in their possession or under their control any credits or other personal property belonging to the defendant, or owing debts to him, etc., shall be liable to the process. Furthermore, that the word "person" may be applied to "bodies politic and corporate." Hence counties, as "bodies politic and corporate," are brought within the meaning of the word "persons," and all persons may be garnished. It is therefore no strained conclusion to say that a county is subject to the process. Speaking of holding a county as garnishee, Judge BIDDLE (Wallace v. Lawyer, 54 Ind. 506) says: "And the decisions are generally made upon statutes authorizing...