Crisp v. Fort Wayne & Elmwood Railway Co.

Hooker, J. The defendant, being garnished in a proceeding in justice’s court, wherein the plaintiff was principal defendant, disclosed that it was indebted to the principal defendant for his personal labor, but was silent as to whether he was a householder.. It does not appear that the fact was within the knowledge of the garnishee defendant, though there was testimony tending to show that it had been so informed by the principal defendant. At the close of the examination the garnishee paid to the justice all money that was due to the principal defendant, and it was applied to the judgment against him. This action was thereupon brought against the garnishee defendant by the principal debtor to recover his exemptions, which he claims that the garnishee defendant could not lawfully pay over to the justice. A garnishee proceeding is purely statutory. If the gar. nishee would protect himself from an action by his creditor, he must see that he takes each step in conformity to law. In other words, he cannot waive any rights of the principal debtor without incurring a personal liability. Hirth v. Pfeifle, 42 Mich. 31. The proceeding is statutory, and in derogation of the common law, and the statute must be strictly followed to bind the principal defendant. Maynards v. Cornwell, 3 Mich. 309; Townsend v. Circuit Judge, [651] 39 Id. 407; Sievers v. Wheel Co., 43 Id. 275; Ford v. Dock Co., 50 Id. 358. In Hanselman v. Kegel, 60 Mich. 548, this Court said: “The proceedings under the garnishee statutes are in derogation of the common law. Not only must the statutes be strictly construed, but there is no authority for any action or prohibition of action outside of them.” How. Stat. § 8032, says that the act shall not apply to $25 of the amount due the principal defendant, where he is a householder having.a family, and the debt is for his personal labor; and section 8037, which permits payment of any sum to the justice in advance of the adjudication, expressly excepts this labor claim. As the right did not exist independent of the statute, and as the statute does not compel it, but on the contrary expressly denies it, we think the payment of such sum is at the peril of the garnishee, unless circumstances create an estoppel which should preclude the principal defendant from* asserting such claim against the garnishee. ‘ It may be said that this is a hardship upon the garnishee; that he must determine at his peril whether the principal defendant is or is not a householder, when he may have no means of ascertaining the fact. It may be admitted that the law might be improved, but the hardship is not a necessary one. There is no law that compels a garnishee to determine the question, and to testify accordingly. He may state any fact that has come to his knowledge, by hearsay or otherwise; and it is his duty to do so, under the repeated decisions of this Court. Drake v. Railway Co., 69 Mich. 168; Sexton v. Amos, 39 Id. 695. He may always safely state that he do.es not know whether the principal defendant is a householder, and, until it appears that he is not, the labor claim is secure; for, unless the disclosure shows a clear liability of the fund to the process, it cannot be reached. Townsend v. [652] Circuit Judge, 39 Mich. 407; Sexton v. Amos, Id. 695; Lyon v. Kneeland, 58 Id. 570; Newell v. Blair, 7 Id. 103; Thomas v. Sprague, 12 Id. 120; Wellover v. Soule, 30 Id. 481; Hewitt v. Lumber Co., 38 Id. 701; Hackley v. Kanitz, 39 Id. 398; Spears v. Chapman, 43 Id. 541; Weirich v. Scribner, 44. Id. 73; Lorman v. Insurance Co., 33 Id. 65. Thus it is seen that the garnishee may always protect himself by his disclosure, and he may perhaps do the same by giving the principal defendant an opportunity to appear and defend the suit against the garnishee, without which the fund cannot be reached unless he chooses to pay it to the justice. But there is no room for an estoppel here, because the illegal payment was not made in reliance on any representation of the principal defendant, but of defendant’s own volition. The judgment will be affirmed. McGrath, C. J., and Montgomery, J., concurred with Hooker, J.