Nash v. Gale

By the Cou/rt. Elandrau, J. The proceedings against garnishees under Chapter 91 of the Revised Statutes, page 405, merely render the garnishee liable to the Plaintiff for the amount of the property, money or effects in his hands or possession, or under his control, or due from the Defendant in such suit, at the time of [the service of the summons upon him, Sec. 3. And such liability cannot be made to extend-to property that may come into his hands, or indebtedness that may accrue subsequent to such service, unless new process is issued and served to secure it. On a careful examination of the whole statute, this conclusion seems to be inevitable. The Plaintiff who desires to proceed against a party as garnishee, is required to make affidavit that he has good reason to believe that such party has property, money or effects, in his hands or under his control belonging to the Defendant, or that such person is indebted to the Defendant, whereupon a summons issues. Sec. 1. This affidavit refers to the present indebtedness of the garnishee to the Defendant, and to property, money or effects which he may then have in his hands or under his control, and not to future matters that may accrue. The summons issues in pursuance of the affidavit, and commands the garnishee to appear and answer touching the matters therein stated, and nothing [312] else.' See. 1 and 2. The examination proceeds solely upon “ the matter alleged in' the affidavit. ” Sec. 7, as amended on page 17 of amendments. When a judgment is rendered against the garnishee, all that is required of him to save costs, is to “ deliver on demand to the officer having the execution, all the property, money and effects in his possesson or under his control belonging to the Defendant, and pay all moneys due from him to the Defendant, at the tíme the sudt was commenced agamst him, ” or enough to satisfy the execution, &c. Sec. 12. The property which the garnishee had belonging to the Defendant, and the debts he owed him at the commencement of the suit against the garnishee, are suspended to the extent that the principal Defendant cannot prosecute the garnishee for them during the pending of the proceeding. Sec. 18. It is true that this section only speaks of such money, property, debts, &c., as are sworn, [proved or admitted t,o be due from such garnishee to the Defendant, “ or are in the hands of such garnishee as aforesadd, ” but this has direct reference to Sections 1, 3, 7 and 12, which are confined to matters owing by him, and in his hands at the time of the commencement of the suit, and consequently refers to such matters only, which interpretation of Section 18 is confirmed by Sections 19 and 20. Section 19 declares that Section 18 “shall not be so construed as to prevent such Defendant from prosecuting for, and receiving of such garnishee, cmy other orfut/wre sum of money, due from such garnishee, or the possession or the value of cmy ’ other property or effects in the hands of such garnishee belonging to such Defendant, ” which evidently refers to such matters as may accrue or come into the hands of the garnishee aft&r the service of the summons upon him, in distinction from such as were in his hands or due from him at that time, showing that the process does not effect such subsequent debts or property. Section 20 makes bills of exchange and promissory notes not dme, effects under the Chapter, and Section 21 provides that when it appears in the examination of the garnishee that he is indebted to the Defendant, but the debt is not due until a future day, that the proceedings are to be postponed until that [313] day, at which, time they may be applied under Section 22, “with the like effect as if the said sum or sums of money had been due or payable at the time of the service of the s-ummons. ” The whole act confines the operation of the proceeding, to' such matters of property and indebtedness as the garnishee had or owned at the time of the service of the summons upon him. The conclusion seems so clear from the analysis of the Statutes above given, that any reasoning in support of it would be uncalled for. In the case at bar, the greatest amount that the evidence of the garnishee shows himself to have been indebtto the Defendant at the time of the service of the summons on him, was one hundred and fifty dollars, and it appears that the contract between him and the Defendant was executory, and created no indebtedness between them until the future performance of the labor under it; this cannot be seized under Section 21, as “ money owing and payable from the garnishee to the Defendant at some future time. ” The Court erred in rendering judgment for a greater amount than the indebtedness of the garnishee to the Defendant at the commencement of the proceeding. The judgment is reversed and a new trial ordered. The Chief Justice having been counsel in the cause, took no part in the decision.