Dodd v. Brott

By the Court Sherbtjene, J. This is an appeal from an order of the District Court, in the County of Eamsey, to satisfy a judgment which the Plaintiff had recovered against the Defendant. The facts are substantially as follows : William E. Marshall and George Cady had each recovered •a judgment against the Plaintiff for a sum exceeding $200.00. 'The Plaintiff about the same time recovered judgment against the Defendant for the sum of $222.79. On the 22d day of October, 1853, being a few days after the recovery of the judgments above mentioned, a garnishee process was served upon, Brott at the suit of Cady to secure the judgment already referred to in his favor, and on the 10th of November, 1853, Brott appeared and answered, and judgment was rendered ■against him for the sum of $96.50. On the 6th day of February, 1854, execution was issued upon the judgment of Cady against Brott, and upon the first day of April, 1854, the execution was returned satisfied and the judgment was satisfied; the amount ■of the whole, with costs, being $104 80. On the 22d day of [273] October, 1853, affidavit was duly filed with tbe Clerk of the District Court for garnishee process for Marshall against Brott, on account of the indebtedness of Dodd. On the 22d day of March, 1854, Brott duly appeared and answered, and on the 27th day of April, 1854, judgment was entered against him as garnishee of Dodd for the sum of $133 31, andón the same day, as appears by the receipt of Marshall, said Brott paid to him on the judgment against said Dodd, the sum of $124 61. On the 17th day of January, 1854, execution was issued upon the judgment of Dodd against Brott. The execution was subsequently set aside and the judgment upon which it was issued satisfied by order of the Court. From this order the Plaintiff appealed. The objection to the order Is, that prior to the time when Brott appeared and answered as garnishee in the causes above referred to, the judgment of Dodd against Brott had been duly assigned to Emmett & Moss. Of this assignment, however, Brott had no notice. The simple question arises whether a debtor who pays a debt in good faith to his creditor, can be made liable to pay it a second time to his creditor’s assignee? If such a rule of law existed, I should not, for a moment, feel bound to follow it. It is repugnant tó common sense and every principle of justice. But no such idea can be supported .by authority. I have not looked into all the cases cited by the Plaintiff’s counsel, but that upon which he seemed to rely most, in 6 Howard's Practice Repts., is not in point. That was the case of a voluntary payment by a creditor, and the Court bases the decision expressly upon that ground. The payment in this cause was by a judgment of the Court. The argument of the counsel that the Defendant answered voluntarily, has no force whatever. He answered, so far as we know, as he was bound to do, in the ordinary course of judicial proceedings. It is absurd to say that he could not properly answer at that timé, that he was indebted to Dodd for the reason that Dodd had assigned the judgment, because the assignees had not taken the precaution to give notice to Brott. He was called into Court to testify whether he was or was not indebted to Dodd. There was but one answer which he could make, truly, and that was that he was so indebted. Upon that an [274] swer, judgment was rendered against him necessarily, and that .judgment he satisfied, by which he paid the Plaintiff’s debt. It is the unanimous opinion of the Court that the order of the *-Oourt below was properly granted. Jt has' been urged that, although the assignment may be ineffectual for want of notice to Brott, still the Attorneys for the Plaintiff had a lien upon the judgment for the amount of costs. There are two reasons fatal to this position. The first is, the Statute does not admit of this construction. The grammatical arrangement of the section and its punctuation; leave no doubt whatever that notice to the debtor in order to affect a lien upon the judgment, is necessary as well when the Attorneys claim a lien upon the costs as when they claim it upon a portion of the judgment by virtue of a stipulation or agreement. The Court are also of the opinion that even if the construction contended for by the Plaintiff’s counsel was correct, still the minor lien of the Attorney was merged in the specific contract of assignment. I do not feel clear in my own mind as to the correctness of this position, and refer to it rather as the opinion of the Court than my own. The proceedings of the Court below must be affirmed.