McDonald v. Carney

The opinion of the court was delivered by Yatjmtine, J.: This action was commenced in the court below by the plaintiff in error, Alexander McDonald, against the defendant in error, Thomas Carney, on the 9th of October, 1868. Afterwards, on the 22d of. the same month, said Carney was served with a notice of garnishment in the same court in an action wherein John McKee, receiver, etc., was plaintiff, and said McDonald and others, composing the firm of J. T. McWliirt & -Co., were defendants. Said McKee was receiver in an action wherein said Carney was plaintiff and Thomas C. Stevens was defendant. Afterwards, on the 9th of November, 1868, said Carney answered in this action, and in the second [23] count of Ms answer set up the fact that he had been garnisheed as aforesaid as a defense to the action. McDonald demurred to said second count of Carney’s answer, claiming that it did not state facts sufficient to constitute a defense to his action. The court below overruled said demurrer, and this ruling is assigned for error. That a plea such as is contained in the second count of Carney’s answer is a good defense for the time being to the plaintiff’s action, we have no doubt. But upon the overruling of the demurrer what judgment or order the court should have made, is not so clear. In New York it has been decided that such a plea is a good plea in abatement of the action; (Embree v. Hanna, 5 Johns., 101; see also Brock v. Smith, 1 Salkeld, 280, and Com. Dig. Attachment, H.;) but in other states it has been held that it can only be good for the purpose of abating or suspending or staying further proceedings in the action until the proceedings in garnishment shall be finally determined: Crawford v. Clute 7 Ala., 157; Crawford v. Stade, 9 Ala., 887; Winthrop v. Carleton, 8 Mass., 456; Merton v. Webb, 7 Vt., 123; Wadleigh v. Pillsbury, 4 N. H., 373. This latter rule we should judge is probably the correct one; but as no judgment or order was made in this case in the court below, except the mere order overruling the demurrer, and as neither party asked for any other judgment or order, we think it is not necessary for us to decide the question now. We now simply decide that the demurrer was properly overruled. We do not think that because this action was commenced against Carney before he was garnisheed in the case of McKee v. McDonald, et al., that such fact invalidates or renders void the garnishment: (Drake on Attachment, §§ 616 to 623, and eases there cited; also § 702, and cases cited.) Neither do we think that because McKee was a receiver in an action in which Carney was a party the garnishment was void. A receiver represents all the parties, plaintiff, defendant, and creditors, (2 Story Eq., § 829,) and he may take possession of and control over all the property and other matters connected with the receivership, and sue and be sued with reference thereto in his own name. [24] (Comp. Laws, 1862, p. 167, § 265; Gen. Stat., p. 678, § 257.) In a proper case, McKee, as receiver, could undoubtedly, under tbe direction of tbe court, sue Carney himself, or Stevens, or any other person who should interfere with his rights as receiver. Therefore, as McKee is not merely the representative of Carney, or of Carney’s interests, we can see no good reason why he could not garnishee Carney. In Louisiana it has been held that a plaintiff may garnishee himself; (Grayson v. Tucke, 2 Martin, 688; Richardson v. Gurney, 9 La., 285;) but in Massachusetts the supreme court has strongly intimated the other way, though they do not decide the question. (Belknap v. Gibbons, 13 Metc., 471, 473.) If the firm of McWhirt & Co., of which McDonald was a member, were liable in the action brought against them by McKee, then they were'all jointly and severally liable under our statute, and the property of each and all was liable for the judgment that might be rendered against them; and therefore McKee undoubtedly had the right to garnishee any creditor of any member of the firm, (Drake on Attachments, § 566, and cases cited,) and hence there can be no doubt of his right to garnishee Carney. Under our code, we think that the statement of the facts in the second count of the answer when attacked by a general demurrer was clearly sufficient. The order of the court below overruling the demurrer is affirmed. Kingman, 0. L, concurring. Brewer, J., did not sit in the case.