Hanaford v. Hawkins

Stiness, J. The garnishees made an affidavit setting forth that at the time of the service of the' writ upon them, for the purpose of attaching the personal estate of the defendant in their hands, they had such personal estate to the amount of two hundred and thirty-three dollars, the net proceeds of a judgment collected by them in favor of said defendant; provided no. legal effect should be given to the fact that they had received a letter from John A. Hawkins, prior to this garnishment, stating that he had purchased said judgment; but if the.fact stated in said letter was true and the right to the fund, in consequence thereof, ■was transferred to said John A. Hawkins, then they had no funds of the defendant in their hands at the time of the attachment. They further stated that they knew nothing of the truth of the alleged fact of an assignment of the judgment. The Court of Common Pleas discharged the garnishees, and exceptions were taken. In a case of conflicting claims a garnishee is a stakeholder, who, after a full disclosure, should be protected from a double liability. But, upon the other hand, if he has a fund which may belong to the defendant, the plaintiff should not be deprived of the benefit of the attachment until it appears that it is not the defendant’s property. The rule in this state is that if the garnishee has notice of an assignment of a fund, before he is charged, so that he may make the fact known to the court, he is not chargeable. The converse of this rule is that if he has no such notice he may be charged. See Noble v. Smith, 6 R. I. 446; Northam v. Cartright, 10 R. I. 19; Tracy v. McGarty, 12 R. I. 168; Tiernay v. McGarity, 14 R. I. 231; Lee v. Robinson, 15 R. I. 369. In these cases, it is to be noticed, no question was made of the fact of an assignment. If this fact be admitted there is no *434 occasion for the assignee to appear to protect his interest. But where the fact or good faith of the assignment of the fund is questioned, it is evidently necessary for the claimant to be made a party to the suit in order to protect the garnishee. The mere fact of a notice ought not to discharge him, for, by the device of false notices, dishonest debtors might evade valid garnishments of their funds. . The claimant under an honest assignment is the one who is chiefly interested to prove it. Hence, it was provided in Pub. Laws, cap. 433, § 1, 1 that any person claiming property attached on trustee process may of his own motion become a party t'o the action, so far as respects the title to such property.' The case before us, however, is one where the claimant does not choose to become a party, but stands simply on the notice given. While this is a circumstance which may well arouse suspicion as to the good faith of the transaction, it would not be safe in all cases, after notice of the assignment, to charge the garnishee upon the claimant’s default; for the claimant may not know of the attachment. If he should be notified by the garnishee to prove his claim, and should fail to do so, whereupon the garnishee should be charged, doubtless he would be estopped to prosecute his claim against the garnishee thereafter. But, even in this case, the notice would not be in the form of the process of the court, and possibly not a part of the record. The ownership of the fund is a question to be determined, as much as in.a bill of interpleader; and the court cannot be left in a position where it is unable to deal with it according to the fact; or else it must deal with it at the peril of doing injustice to one of the parties before it. Accordingly, it was held in Chesapeake & Ohio R. R. v. Paine, 29 Gratt. 502, that the court should require the claimant to appear to state and maintain his claim. Without resorting to this power of the court, which we see no reason to question, we think Pub. Stat. R. I. cap. 204, § 34, 2 is sufficiently broad to enable our courts to deal properly with a case of this kind. That section provides that *435 the court may order any person to be made a party to any action, and to be summoned in to answer thereto. The provision is comprehensive. Evidently it is not to be restricted simply to parties defendant to the cause of action, for, in section 32 1 of the same chapter, the coux’t is empowered, in definite terms, to ‘ ‘ order other parties to the contract or specialty to be xnade defendants and to be summoned in to answer such action or suit.” The phrase used in Pub. Laws, cap. 433, relating to claimants, is the .same that is used in this section 34, viz., “party to the action.” This use of teims points to the conclusion that the statute was not intended to include only parties to the cause of action, but to ixxclude, as well, those who may be interested in the judgment of the coux-t upon incidental or collateral “matters in controversy,” an example of wlxich is fouxxd in the case before us. In this view the question of the garnishees could be ‘ ‘ properly dealt with” by making the claimant a party to the action and could not be “properly dealt with,” without him. We are therefore of opinion that the question of the garnishees’ liability, in this case, was not ripe for judgment axxd that the discharge was premature. Possibly the plaintiff was in fault in xxot asking to have the claimant summoned in; but as the legality of this mode of procedure has not before been raised, and there will 'be no injustice to the parties, we do not think he should be deprived of his remedy. A second garnishment was made at the same time that the garnishees received a check in settlement of an execution in favor of this defendant, and before they had presented it for •payment. The general rule is that where one holds a promissory note, baxxk check, or 'chose in action, belonging to a defendant, he cannot be charged for the same on trustee process ; because these are not money and may never be paid. But if a check or note be held and treated as cash, so that a debt is absolutely due from a trustee to a defendant on account thereof, whether the note or check be good or not, the garnishee should be charged. Hancock v. Colyer, 99 Mass. *436 187. This is a question of fact, and, so far as the facts are disclosed in the record, the refusal of the court to charge the garnishees upon this check was correct. Eor the reasons stated upon the first exception a new trial is granted. Samuel W. K. Allen, for plaintiff. Stephen A. Cooke & Louis L. Angelí, for defendant. Footnotes [1] Printed in 16 R. I. p. 734. [2] Printed in 16 R. I. p. 583. [1] Printed in 17 R. I. p. 450.