Bragunier v. Beck & Corbett Iron Co.

Opinion by Clogston, C.: Two questions are raised by the plaintiffs in error: First, was Bragunier, the party served with garnishment, such an agent, and did he have such possession of the property of Weaver & Co. as would make him liable in garnishment proceedings? Second, are mortgagees of personal property, while in the possession of the property, liable in garnishment? As to the first of these questions, it is one of some doubt, and each case of this character must be determined upon the facts surrounding it, and no rule can be established that will apply to all of this class of cases; for it has been held, and doubtless properly, that some classes of agents are not liable; such, for instance, as hotel-keepers while in possession of the baggage of their guests, and persons who hire livery teams, common carriers, persons in charge of property under conditional sales, where goods are turned over for examination or trial; all those classes of possession have been held not sufficient to create a liability to answer in garnishment. (Waples, Att. and Garn., p. 194.) But we think few cases can be found where this rule has been applied to persons who are in charge of stocks of goods or stores as general managers or agents having the care, control and management of such business. In this case, while Bragunier in one sense was the agent of Kellogg & Sedgwick, yet Kellogg & Sedgwick were simply the agents of the original creditors; they were representing non-resident creditors of Weaver & Co., [545] and neither they nor Bragunier had any interest in the goods, but were simply trustees or agents for the persons named in the mortgage. At the time of the service, the goods were held by Bragunier under the mortgage, but at that time the mortgage had spent its force, and all rights under the mortgage had ceased, for the reason that a sufficient amount of the goods had been sold and the money deposited in bank to pay off the mortgage debt. The mortgage then did not give any possession to Sedgwick or Bragunier, but the goods were held by them subject to Weaver & Co.’s order. If this is true, then the goods were subject to attachment as the goods of Weaver & Co.; and, if so, surely subject to garnishment in the hands of the persons who had actual possession and charge of the goods. (Victor v. Insurance Co., 33 Iowa, 210; Jones v. Crews, 64 Ala. 368; Caldwell v. Coates, 78 Pa. St. 312; Webster v. Steele, 75 Ill. 544.) Under these facts, we think Bragunier’s possession and agency were sufficient to require him to answer and be responsible for the goods. (Buddig v. Simpson, 33 La. Ann. 375.) The second claim we think is not well taken, and the authorities cited by counsel do not bear out their theory. In Dieter v. Smith, 70 Ill. 168, cited by counsel, the court held that property in the hands of a mortgagee was not subject to garnishment, but it was upon a very different state of facts from that presented in this case. In that case the mortgagee had taken possession of the property but a few days before service, and had not made a sale of the mortgaged property. The court properly held in that case that the mortgagee was not subject to garnishment, because it could not be definitely told that the property would be more than enough to pay the mortgage debt, or that it might not be lost or destroyed and nothing be realized from it. But the court in closing that case said: “If he had the property and had an excess in his hands over his debt, that would have presented a different case; or if he had refused'to sell according to the terms of the mortgage and converted the property to his own use, that would have presented a different question.” We think the [546] rule is well established that where the mortgagee is in possession of the mortgaged property, and is fairly carrying out the terms of the mortgage, or has failed to get possession of the mortgaged property, although entitled to its possession — in all those classes of cases the mortgagee is not liable to such process. (Fountain v. Smith, 30 N. W. Rep. 635.) But where he has the property in his possession, and refuses to sell and satisfy the mortgage, or where he has sold and satisfied his mortgage, and there remains an excess of property in his hands —in that class of cases we think the authorities are also well settled that he must answer to garnishment. These questions settle this case, and we are satisfied from the answers of the garnishee that at the time of service upon him he had such control of the property as made him liable; and as this property was turned over in violation of the process of the court, the defendants were liable to the plaintiffs below for the amount of their judgment and the costs. It is therefore x*ecommended that the judgment of the court below be affirmed. By the Court: It is so ordered. All the Justices concurring.