Kennedy v. Wikoff

Conger, J. The controversy in this case grows out of the proper construction to be given section 37 of the Attachment Act, which is as follows: “All judgments in attachments against the same defendant returnable at the same term, and all judgments in suits by summons, capias, or attachment against such defendant, recovered at that term or at the term when the judgment in the first attachment upon which judgment shall be recovered is rendered, shall share pro rata according to the amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise. Provided, when the property is attached while the defendant is removing the same, or after the same has been removed from the county, and the same is overtaken and returned, or while the same is secreted by the defendant or put out of his hands for the purpose of defrauding his creditors, the court may allow the creditor or creditors through whose diligence the same shall have been secured, a priority over other attachments or judgment creditors.” As we understand, the construction of this section insisted upon by appellants, is, that when one sues out an attachment, and a final decision of the case is reached by a judgment being recovered by, or against, such attaching creditor, that all other persons who recover judgments against such attachment debtor, in accordance with the provisions of Sec. 37, are entitled to share pro rata in the proceeds of the attached property. We can not assent to this view. We think the section is intended to apply when the attachment is made successful by the attaching creditor recovering a judgment agai st his debtor, and not when,' as in this case, the attachment fails, and judgment goes against the attaching creditor for the costs of suit. When an attachment issues it lays hold of and appropriates the debtor’s property, keeping it in the custody of the law until such time as it may be needed to satisfy the creditors’ demand. By Sec. 37, other creditors bringing ordinary actions against the same debtor and succeeding in recovering judgments at the same term as the attachment creditor, may make the one attachment a foundation for claiming a share of the proceeds of the attached property. But if the attachment from any reason loses its vitality and is unable longer to hold the property, its usefulness is gone and it will no longer avail either to the attaching creditor or to others relying upon the provisions of Sec. 37. Others of the appellees beside Kidwell having obtained judgments against Snyder, by confession, issued executions upon such judgments, which were afterward duly returned, “no property found.” On the return of these executions the plaintiffs sued out under the provisions of chapter 62, entitled “ Garnishment,” writs of garnishment, and had such writs served upon various persons having effects of said Snyder in their hands, and appellants also insist, as we understand their position, that they are entitled to share in the property and effects thus reached by garnishment by virtue of said See. 37 of the Attachment Act. We think this See. 37 has no application whatever where garnishee process is taken out under Chap. 62. . When proceeding under that chapter, each creditor gets what he can and is not required to share with other creditors, unless they have succeeded in garnishing the same person or property. By Sec. 6 of the Attachment Act, provision is made not only for attaching the debtor’s property but also for summoning other persons as garnishees, and it is property and effects thus seized or garnished by the attachment writ that is required by Sec. 37 to be, under certain circumstances, divided out among the creditors. We think the court held properly in excluding appellants from participation in the property and effects reached by the garnishee process issued under and by virtue of chapter 62, and the j udgment will therefore be affirmed. Affirmed.