Durk v. Scully

Per Curiam. In November, 1903, the appellant II. O. Durk recovered a judgment against M. C. Scully for the sum of $250, and costs of action amounting to $17.20. Thereafter he sued out a writ of garnishment, and caused the same to be served on the appellant Pidelity Deposit and Trust Company, requiring it to answer what amount, if any, it was indebted to Scully, and what effects if any it had in its possession or under its control belonging to Scully. The garnishee answered to the effect, that it did not have any money or properly which to its knowledge belonged to Scully, but that to secure it against its liability for becoming surety on the bond of Scully, Scully had delivered to it a certified check of one thousand dollars, drawn on the American Savings Bank and Trust Company by the Queen City Cigar Company, which' it had afterwards cashed; that, after the service of the writ upon it, but prior to the time of the release of the obligation it had entered into on behalf of Scully, it had been notified that the money was the property of the Queen City Cigar Company, and had been assigned and transferred to the American Savings Bank and Trust Company by the Cigar Company; and that it had thereupon paid over to that company $775 of the money, but held $225 thereof pending the determination of the ownership of the same. Durk controverted the answer, contending that the money was the money of Scully; that Scully and the Queen City Cigar Company were one and the same person; and that the garnishee was liable to answer to the amount of his judgment notwithstanding the assignment. Pending the trial of this [359] issue, the American Savings Bank and Trust Company asked and obtained leave to intervene in the proceeding, and thereafter filed its pleading therein claiming to own the money by virtue of the assignment made to it by the Queen City Cigar Company. This pleading was also controverted by. Durk. Thereafter the issues were tried out before the court, and resulted in the following judgment: “This cause having regularly come on to- be heard, before the Honorable Arthur E. Griffin, on© of the judges of this court, on the 13th day of September, 1904, ... by agreement of all parties, a jury was waived, and the case submitted for trial to the court. Plaintiff introduced his evidence and rested. Intervener introduced his evidence and rested, and the garnishee, through its counsel, having stated to the court that it took issue with neither party, and the court, after having heard the- evidence offered, the arguments of counsel, and being fully advised in the premises, finds upon the issues joined, that the money in question, to wit: The sum of two hundred twenty-five dollars, in the hands of the Eidelity & Deposit Company of Maryland, garnishee, belongs to the intervener, American Savings Bank & Trust Company, a corporation, and that said corporation is entitled to recover the same, and that the garnishee, the Eidelity & Deposit Company of Maryland, has not, and did not have, in its possession, or under its control, when served with garnishment summons, any money belonging to M. C. Scully, and was not indebted to him, and that said garnishee should be discharged as garnishee herein upon its answer and the evidence offered. “It is therefore ordered, adjudged and decreed that the intervener, American Savings Bank & Trust Company, a corporation, is entitled to receive the money in controversy in the hands of the garnishee, in the sum of two hundred twenty-five dollars, and to recover from plaintiff herein its costs, taxed at $......; that the garnishee, Eidelity & Deposit Company of Maryland, be, and is, hereby discharged as garnishee without costs of any kind to be taxed against said garnishee.” Erorn this judgment, Durk and the garnishee both appeal. On the trial it appeared that, prior to the issuance of the writ of garnishment, Scully had paid to Durk $100 to be [360] credited on the judgment and that there was, at the time the writ was sued out, less the $200 due thereon, and that the amount now in controversy in this proceeding is, and at all times has been, less than $200. Based on this fact the reslpondent moves to dismiss this appeal on the ground that this court is without jurisdiction. We think the motion, must be granted. This is an action at law te» recover money, and as the amount in controversy is less than $200, this court is without jurisdiction by virtue of see. 4 of art. 4 of the state constitution. The garnishee appellant contends that as to it the amount in controversy is $225, and that a judgment has been entea’ed against it for that amount. But the appellant is mistaken as to the effect of the judgment rendered. It is not a judgment against it, and no execution could be issued against it for the money in its possession. True, costs were not awarded this appellant, but the refusal to award it costs, even though it were found to be entitled to them, does not give it the right of appeal. The appeal is dismissed