Malley v. Altman

By the Court, Cole, J. It is objected in this case that the county court acquired no jurisdiction of the garnishee, because it affirmatively appeared from the affidavit for garnishee proceedings, that he had property in his possession, consisting of goods, wares and merchandise, which were subject to actual levy by attachment. It is a sufficient answer to this objection, that the sheriff returned he could find no property to attach and get possession of, and this return must be deemed conclusive in this proceeding. Although the garnishee might have had in his possession goods and merchandise at the time the affidavit was made, it does not follow that the officer could find it or seize the same. He returns that he could not, and that was all that was necessary to authorize the officer to summon the garnishee to appear and answer such questions as might be put to him touching his liability as garnishee of the defendant in the attachment.- It is further objected that the order for the injunction, and the injunction itself, were improvidently granted against the garnishee, and that they could only properly issue against the real defendant in the action. The statute authorizes the granting of an injunction when, during the litigation, it shall appear that the defendant is doing, or threatens or is about to do, some act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual. Section 2, chap. 129, R S. The affidavits in the case clearly show that Allen claims to be the absolute [25] owner of tbe goods and merchandise purchased by him of Blossom, and to have the right to dispose of them he sees fit. It is farther stated in the affidavits that he is insolvent. Now the sale by Blossom is alleged to be fraudulent and void, and should this fact be established, then obviously a judgment against Allen would be ineffectual, unless in the meantime he is restrained from disposing of the property. v Although it is very apparent that an injunction against a garnishee under these circumstances would come fully within the spirit of the statute and the mischiefs intended to be prevented by it, yet at first we had some doubt whether the case came within the letter of the provision. The statute speaks of “the defendant in the action,” who is doing or threatens to do some act in violation of the plaintiff’s rights, and who is to be restrained. But a proceeding against a garnishee is to all intents an action. This an examination of chapter 130, B. S., will clearly show. Issues can be made up and tried, and judgment can be rendered in the garnishee suit, which has substantially the same legal effect as any other judgment. And this is the reason why the authority of Reubens vs. Joel et al., 3 Kernan, 488, can have no application to this case. Here the proceeding against the garnishee is a suit, and the garnishee becomes a “ defendant in the action,” coming within both the letter and spirit of the law. In'New York they have no such statute as our chapter 130. The conclusion at which we have arrived is, that the injunction against the garnishee was properly allowed, and we must therefore affirm the order granting the same. Order affirmed, with costs.