Botsford v. Simmons

•GRAVES, Oh. J: In July, 1874, the plaintiff in error recovered judgment .against Simmons for damages, two hundred and eighty-eight •dollars and forty-two cents, besides costs of suit, and whilst that suit was pending, and on the 16th day of February of the same year, they summoned Hill to answer as garnishee. The affidavit for this summons is not in the printed record, but the summons itself is set out, and it thereby appears that the claim against Hill was not that he was in any way indebted to Simmons; but that he “had property, money, goods, ■chattels, credits and effects in his hands, or under his control belonging” to Simmons. Mr. Hill appeared and made disclosure, and according to the record he admitted himself to be indebted in the sum of one thousand three hundred and seventy-four dollars and ninety-six cents, either to Simmons or to one Frederick W. Thrall, and averred that he was unable to say to which of the two he was thus indebted. It does not appear that he was asked whether he “had property, money, goods, chattels, credits or effects ” in his hands ■or under his control belonging to Simmons, nor does it appear that any thing was said in relation thereto, although that was the specific ground of the proceeding against him. In this state of the case a stipulation was made by the plaintiff’s attorney and the attorneys for Simmons of the following tenor: “It is hereby stipulated , and agreed by and between said plaintiffs and said garnishee'defendant, by their respective attorneys, that an order may be entered in said -cause permitting and requiring Frederick ~W. Thrall, named [356] in tbe disclosure oi said garnishee defendant as claiming to be entitled to the indebtedness therein mentioned, to appear in said canse and maintain bis rights in the premises, and that an issue be framed and tried between said Thrall and said plaintiffs.” On the authority contained in this stipulation for an issue to decide whether Hill’s confessed indebtedness Avas to Simmons or Thrall, the court afterwards made an order as folloAYS: “On reading the stipulation heretofore filed between the plaintiffs and the garnishee defendant in the above cause by their respective attorneys, and on motion of Wilkinson and Post, attorneys for said defendant and said guar-nishee defendant, and for Frederick W. Thrall, ordered that said Frederick W. Thrall be permitted to appear and maintain his claim to said fund admitted by the garnishee' defendant in his answer to be in his hands, and that the same be tried and submitted for determination 'at the same time, and together with the trial of the statutory issue claimed by said garnishee defendant in said cause.” This proceeding for deciding a supposed question between Simmons and Thrall, for the purpose of settling whether or not the plaintiffs Avere entitled as against Hill, Avas rested on § 6492, C. L. The actual frame of the issue suggested by the foregoing order does not appear in the printed record. As, however, the order indicated what it should be, aa'6 may perhaps assume that it folloAved the order. The trial Avas before the court, and resulted in a special finding of facts and a. judgment thereon sustaining Thrall’s right, and adverse to. the liability of Hill, the guarnishee. The plaintiffs then brought error on this judgment, and they complain of the conclusions of law on the facts. If upon the whole record they were not entitled to recover against Hill, the reasons stated by the court beloAV for its conclusion are immaterial.. It cannot have escaped notice that the case presente several striking incongruities. The whole garnishee proceedings-Avere founded on the act of March 16th, 1861, as amended,. [357] and which appears in the compiled-laws as part of chapter 202. — See C. L., Vol. 2, ¶. 1818. This act allows a garnishee prosecution where the party, to be garnished is claimed to hold one or both of two separate positions, and the ground set out when the proceeding is initiated is the ground to which the after proceeding should be confined. The first ground is, that the person to be garnished is alleged to have property, money, goods, chattels, credits and effects in his hand's or under his control belonging to the defendant; and the second is, that such person is indebted to the principal defendant. — § 6465. These grounds axe distinct, and the party is never subject to be charged and held upon one, when the process is confined to the other, unless it chance to happen, which .must be very seldom, that the true condition of the matter in question is at the same time within the legal meaning of the second ground, and of some term in the first. An examination of the act will show that the legislature considered the distinction between the two grounds as one to be carefully observed in the management of the remedy. The' distinction is plainly drawn in the first section, and the two grounds, though allowed to be joined, are nowhere confounded; ' The interlocutory proceedings, as well as the kind of judgment, are to be different in the one case, from what they are required to be in the other.—See the sections from, §.6472 to § 6474, inclusive, and § 6482 to § 6489, inclusive; also § 6492, § 6497 and § 6498. The basis of the particular case 'is therefore not to be departed from in the intermediate steps, or in the final .determination. _ , Now, here we find, as before stated, that the plaintiffs charged Hill, not as debtor of Simmons, but upon the distinct and separate claim, that he held'or, controlled property, money, goods, chattels, credits and effects which belonged to Simmons; that Hill in disclosing did not admit any thing under the claim thus made against Mm, but did admit that [358] he was in fact indebted, either to Simmons or Thrall; that it was then stipulated that Thrall should appear and assert his right to this indebtedness, and that the court, on the authority conferred by such stipulation to. controvert the right to an indebtedness from Hill, ordered- that Thrall should be admitted to maintain his claim to a fund in Hill’s hands. In strictness, the admission of Hill in his disclosure, and which was relied upon, was not one within the scope of the plaintiffs’ charge; and the order of the court, for a trial of Thrall’s right to a fund which it assumed to be in Hill’s hands or under his control, was not warranted by the stipulation, which contemplated the trial of the right of Thrall to an indebtedness from Hill. But let it be admitted that an issue was made agreeably to this order respecting Thrall’s right to a fund claimed to be in Hill’s hands or under his control, and which the plaintiffs alleged to belong to Simmons, still the facts found wholly failed to support the plaintiffs’ side of such an issue. And on the other hand, if we may assume that the issue made and tried was, whether the admitted indebtedness of Hill was due or owing to Thrall, intead of Simmons, the facts found were likewise against the plaintiffs. Hence in any view the plaintiffs were irot entitled to hold Hill, and the final result was not objectionable. Judgment affirmed, with costs. The other Justices concurred.