Weaver v. Cressman

• Citation: 33 N.W. 478,21 Neb. 675
• Parties: WEAVER v. CRESSMAN AND OTHERS.
• Decision Date: 09 June 1887
• Court: Nebraska Supreme Court

21 Neb. 675

33 N.W. 478

WEAVER

v.CRESSMAN AND OTHERS.

Supreme Court of Nebraska.

June 9, 1887.

Syllabus by the Court.

Where an action in the nature of a creditor's bill is brought by a non-resident of the state against a non-resident on a judgment rendered in another state, on which an execution had been returned unsatisfied, to reach funds belonging to the debtor in the hands of a clerk of a district court, the petition must show that there is no property of the debtor within the state subject to attachment or garnishment.

While the general rule is that funds in the hands of the clerk of a court are not subject to garnishment in an action at law, yet in a proper case a court of equity may subject such funds to the payment of the claims of a creditor.

A judgment rendered in another state, when brought into this state, is merely evidence, and, to be available in this state, a judgment must be recovered thereon in our courts.

Where an action is brought in this state on a judgment recovered in another state, to subject certain property of the debtor alleged to have been assigned by him without consideration, the debtor is a necessary party to the suit.

Appeal from Cuming county.

H. C. Brome, for plaintiff.

No appearance contra.

MAXWELL, C. J.

In January, 1886, the plaintiff filed a petition in the district court of Cuming county, stating his cause of action as follows:

“That in October of the year 1878, one George W. Cressman, who then resided in the state of Pennsylvania, where this plaintiff then resided, and now resides, was justly indebted to this plaintiff in the sum of three hundred and seventy-five dollars; that in said month of October, 1878, plaintiff recovered a judgment against said George W. Cressman for three hundred and seventy-five dollars, or thereabouts, and costs upon said indebtedness in the court of common pleas of Montgomery county, Pennsylvania, which was a court having jurisdiction of the subject-matter, and of the person of said George W. Cressman, defendant therein, which judgment was rendered in all respects according to law; that said judgment is still in full force and effect, and there is now due thereon about six hundred dollars; that thereafter an execution was duly issued upon said judgment to the proper officer, and in the manner prescribed by the laws of Pennsylvania, and to the county therein where said George W. Cressman resides, which said execution was returned wholly unsatisfied, and still remains wholly unsatisfied and unpaid; and that plaintiff has heretofore exhausted his remedy at law upon said judgment, and has utterly failed to collect the same; that about the year 1878 the said George W. Cressman had a certain interest in a mechanic's lien on certain property and real estate and fixtures in the village of West Point, in the county of Cuming and state of Nebraska, which he assigned, without consideration, to one John C. Kloder, who, about the same time, and as a part of the same transaction, assigned the same, without consideration, to Mark S. Cressman, one of the defendants herein; that said mechanic's lien was afterwards foreclosed in due form of law, and out of the proceeds of said foreclosure there are now twelve hundred dollars in the custody of the defendant Julius Thiele, who is the clerk of the district court of Cuming county, Nebraska, as such clerk, which said twelve hundred dollars is a part, in law and equity, of the assets of said George W. Cressman, subject of right, and in law and equity, to the payment of his debts, but which is held by the defendant Mark S. Cressman as assignee of the said George W. Cressman, and to which said George W. Cressman now makes no claim whatever; that the defendant Thomas M. Franse makes some claim to said fund of twelve hundred dollars, or some portion thereof, the particulars of which claim are unknown to plaintiff herein, but which claim is adverse to plaintiff's claim herein; that plaintiff has...