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(154 Minn, 252, 191 N. W. 589.)

C. R. VERRY

V.
GEORGE B. BARNES.

LEWIS E. JONES et al., Claimants.

F. R. BARNES, Appt.,

V.
C.'R. VERRY, Respt.

VIOLETTE M. VERRY, Admrx., etc., of Thomas R. Verry, Respt.,

V.
JAMES FITZGERALD, Sheriff, Appt.
Minnesota Supreme Court - January 12, 1923.

(154 Minn. 252, 191 N. W. 589.) Attachment — of property in possession of sheriff.

1. When the sheriff has levied on the property of a judgment debtor and advertised it for sale, the debtor may not interrupt the execution of the process of the court by attaching the judgment.

[See note on this question beginning on page 711.] Attorney and client - priority of lien tends to judgments of different courts for services.

and to those rendered in separate ju2. An attorney's lien on a judgment risdictions. he has secured for his client is su- [See 15 R. C. L. 823.] perior to the claim of a creditor of the

Assignment - of judgment — sufficlient who levies on the judgment be- ciency. fore the giving of notice of the claim 4. As between the parties to a judgfor the lien. The rule holds good, al- ment, an assignment thereof is good, though the lien was asserted by two

although not filed. attorneys, one of whom was not a resi

Pleading order to make more defident of this state and not licensed to

nite — failure to comply. practise in its courts.

5. Failure to comply with an order [See 2 R. C. L. 1075.]

to make a pleading more definite and Set-off right to purchase judgment

certain is of no consequence, if the for.

issue tendered by the portion of the 3. A judgment debtor may purchase pleading covered by the order is not a judgment to use as a set-off. If he litigated. wishes to avail himself of the right to Evidence weight uncontradicted have it treated as payment pro tanto, testimony. he should apply to the court to have 6. Uncontradicted testimony does one judgment set off against the other, not compel a finding in accordance and not levy on the judgment against therewith. himself. The doctrine of set-off ex- [See 26 R. C. L. 1087.]

Headnotes by LEES, C.

APPEAL by F. R. Barnes from a judgment of the District Court for Wilkin County (Flaherty, J.) allowing a lien in favor of plaintiff's attorneys in an action on a contract relative to the exchange of certain lands, in which the attorney filed a claim for a lien upon the judgment which appellant claimed to have attached to secure a debt owing himself, Affirmed.

APPEAL by plaintiff F. R. Barnes from a judgment of the District Court for Wilkin County (Flaherty, J.) in favor of defendant in an action brought to recover an amount alleged to be due on a judgment against defendant, which had been assigned to plaintiff by a bank. Affirmed.

APPEAL by defendant sheriff from a judgment of the District Court for Wilkin County (Flaherty, J.) in favor of plaintiff, subject to an attorneys' lien, in an action brought to recover money collected by defendant on an execution. Affirmed.

The facts are stated in the Commissioner's opinion.

Messrs. George D. Smith and Wolfe was issued and a levy made on land & Schneller for appellants.

in that county. The land was adMessrs. Lewis E. Jones and W. S. vertised for sale on February 21, Lauder, for respondents:

1920. On that day Barnes's attorA sheriff is an officer of the court.

ney paid to the sheriff $2,718.65, the In seizing property he acts pursuant to the writ of the court for the benefit of

amount required to satisfy the exe

cution. the person procuring the writ; to that

In 1917, a North Dakota extent he is the agent of the first at

bank obtained a judgment against taching creditor, and as such agent Verry for $6,099.88. On February cannot do an act against the interest 18, 1920, $3,550 was due on the of his principal.

judgment. On that day the bank Camp v. Williams Bros. 119 Ga. 152,

assigned the judgment to F. R. 46 S. E. 66; Headrick v. Brattain, 83

Barnes, who is a brother of George Ind. 188; Winton v. State, 4 Ind. 321;

B. Barnes. F. R. Barnes immediSibert v. Humphries, 4 Ind. 481; Ross v. Clarke, 1 Dall. (Pa.) 354; Shinn v.

ately commenced an action against Zimmerman, 23 N. J. L. 150, 55 Am.

Verry in the district court of WilDec. 260; Dawson v. Holcomb, 1 Ohio, kin county to recover the amount due 275, 13 Am. Dec. 618; Keating v. Spink, on the judgment and caused a writ 3 Ohio St. 124, 62 Am. Dec. 214; Jones of attachment to be issued and dev. Jones, 1 Bland, Ch. 443, 18 Am. Dec.

livered to the sheriff, and on Febru327.

ary 20 the sheriff levied on Verry's The lien of the attorney is unassail

judgment against George B. Barnes able and must be sustained. Gill v. Truelsen, 39 Minn, 373, 40 N.

and on the land about to be sold to W. 254; Lindholm v. Itasca Lumber Co. satisfy it. On the following day the 64 Minn. 46, 65 N. W. 931; Northrup v.

sheriff made return on the execuHayward, 102 Minn. 307, 113 N. W. tion, certifying that he had collect701, 12 Ann. Cas. 341; Henry v. Tray- ed $2,718.65 thereon, deducted his nor, 42 Minn. 234, 44 N. W. 11; Davis fees and expenses, and held the rev. Great Northern R. Co. 128 Minn.

mainder of the money by virtue of 354, 151 N. W. 128; Coleman v. Austin, the attachment levied on the judg. 99 Ga. 629, 27 S. E. 763; People use of

ment. On February 18, 1920, C. Simon v. Pack, 115 Mich. 669, 74 N. W. 185; Fenno v. English, 22 Ark. 170;

R. Verry assigned his judgment Rust v. Larue, 4 Litt. (Ky.) 412, 14

against George B. Barnes to T. R. Am. Dec. 172; Eggleston v. Boardman, Verry. The assignment was not 37 Mich. 14; Allcorn v. Butler, 9 Tex. filed in the office of the clerk of the

district court until February 23, Lees, C., filed the following opin- 1920. At the time of the assignion:

ment, Verry was actually indebted Three judgments of the district to the assignee in a sum exceeding court of Wilkin county are involved $3,000. On February 20, 1920, Lewin these appeals, which were heard is E. Jones and W. S. Lauder, as and submitted at the same time. attorneys for C. R. Verry, filed in

On December 27, 1919, a judg- the office of the clerk of the district ment was entered in the district court a claim for a lien of $1,010.65 court of Wilkin county in favor of upon their client's judgment against C. R. Verry and against George B. Barnes. On February 26, 1920, T. Barnes for $2,623.80. An execution R. Verry made a demand on the

56.

of lien for
services.

(154 Minil. 252, 191 N. W. 589.) sheriff for the money he had re- giving Verry's attorneys judgment ceived on the execution against for the amount of their lien. An Barnes. The demand was refused attorney's lien on a judgment he has on the ground that F. R. Barnes had secured for his cliattached the money. Thereupon T.

Attorney and

ent is superior to client-priority R. Verry brought an action against the claim of an exethe sheriff to recover the money. cution or attaching He died while the action was pend- creditor of the client, who levies on ing and Violette M. Verry, as ad- the judgment before notice of the ministratrix of his estate, was sub- claim for the lien has been given. stituted as plaintiff. Messrs. Jones It has long been settled that a party and Lauder intervened in the action to a cause may not run away with in which C. R. Verry had obtained the fruits of his attorney's industry judgment against Barnes and and ability without satisfying the claimed so much of the money in the attorney's just demands. The attorsheriff's hands as was required to ney has a lien on the cause of action satisfy their lien. There was a trial from the time of the service of the by the court without a jury of the summons. It continues until it is several issues thus arising.

satisfied or released. It is not necIn F. R. Barnes v. C. R. Verry, essary that notice of the lien be givthe court found that the North Da- en to the opposite party or his atkota judgment had been assigned to torneys. They. are required to take plaintiff on February 18, and that notice of it. Henry v. Traynor, 42 on the same day Verry assigned his Minn. 234, 44 N. W. 11; Lindholm judgment against George B. Barnes v. Itasca Lumber Co. 64 Minn. 46, to T. R. Verry; that, to induce F. R. 65 N. W. 931; Desaman v. Butler Barnes to purchase the North Da- Bros. 114 Minn. 362, 131 N. W. 463; kota judgment, George B. Barnes Kubu v. Kabes, 142 Minn, 433, 172 gave him his note for $1,250, which N. W. 496. was the amount paid for the assign- It is sought to avoid the appliment of the judgment; that in truth cation of these principles on the George B. Barnes was the purchas- ground that Judge Lauder is a noner of the judgment, and the assign- resident attorney, not licensed to ment to his brother was a mere de- practise in this state. We deem that vice to defeat the collection of the fact unimportant. A nonresident Minnesota judgment in the case of attorney may try or assist in the Verry v. Barnes; that the note had trial or conduct of an action or probeen paid before the trial, and that ceeding pending in a court of this at the time of the trial George B. state. Gen. Stat. 1913, § 4947. By Barnes was the real owner of the usage and comity, the privilege of North Dakota judgment.

practising in all the courts of a state. In C. R. Verry v. George B. is extended to regularly licensed atBarnes the court found that the at- torneys of sister states. 6 C. J. 573. torneys had a lien upon the judg- But they have no authority to comment for the amount they claimed. mence actions in the courts of this

In Violette M. Verry v. James state (Francis v. Knerr, 149 Minn. Fitzgerald, as sheriff, the court 122, 182 N. W. 988), and hence the found that plaintiff was entitled to prevailing practice is to associate a judgment for the money in the sher- resident attorney as the attorney of iff's hands remaining after the lien record.

record. When this is done, as it of the attorneys had been satisfied. was here, there is no reason for de

These appeals are from the sever- nying a lien for the compensation al judgments entered on the findings the client should pay. and were taken after motions for 2. Did F. R. Barnes acquire new trials had been made and de- rights by virtue of the attachment nied.

which were superior to those of the 1. The court was clearly right in Verrys? The findings with respect

ment for.

Attachment-of

session of
sheriff.

to the relations between George B. those rendered in separate jurisdicand F. R. Barnes have a material tions (15 R. C. L. p. 822; 23 Cyc. bearing on this question. To all in- 1481), as, for example, to a decree tents and purposes, the former was in admiralty in a Federal court playing in a double rôle. He was a and a judgment in a state court judgment debtor whose property (Schautz v. Kearney, 47 N. J. L. had been levied on and was about to 56), and to a final judgment in anbe sold and, at the same time, a other state and a domestic judgment judgment creditor seeking to attach (Phillips v. Mackay, 54 N. J. L. 319, a judgment against himself. A 23 Atl. 941). Under all the authorijudgment debtor may purchase a ties, since George B. Barnes was the

judgment for the real owner of the North Dakota Set-off-right to purchase judg- purpose of using it judgment, he could have obtained

as a set-off (Mor- adequate relief by applying to the ton v. Urquhart, 79 Minn. 390, 82 district court of Wilkin county to N. W. 643; 15 R. C. L. p. 823; 23 have one judgment set off against Cyc. p. 1483), but is not entitled, as the other, and the rights of all the a matter of right, to offset one judg- parties could have been worked out ment against another, it being dis- if such an application had been cretionary with the court to grant made. or deny such relief (Lundberg v. There are valid reasons for holdDavidson, 68 Minn. ,328, 71 N. W. ing that a judgment debtor may not 395, 72 N. W. 71; Martin County attach the judgment Bank v. Bird, 92 Minn, 110, 99 N. after his property property in posW. 780). The procedure here is has been taken on novel, but, of course, that alone is execution and is not a reason for holding that it was about to be sold. It is an elemennot proper. In Lemane v. Lemane, tary rule of law that money received 27 La. Ann. 694, the court said: by a sheriff at an execution sale, or “The law tolerates no such absurd- paid to him to satisfy the execution, ity as a judgment creditor seizing a is in custodia legis and beyond the judgment against himself."

reach of another writ. 23 C. J. p. In Irvine v. Myers, 6 Minn. 562, 359. It would have been of no Gil. 398, this was said: “It is un- avail for Barnes to attach the monnecessary to consider the question ey he paid to the sheriff. He atwhether Irvine could levy upon a tempted to reach it by attaching the judgment against himself,

judgment, and the question is: as we think that judgments should Should he be allowed to do indirectalways be offset against each other ly what he could not do directly? when they are final between the par- The right to levy on a judgment is ties, and their rights fixed under recognized by statute and in the dethem.

cisions of this court. Gen. Stat. And in Martin County Bank v. 1913, $$ 7909, 7930; Thompson v. Bird, supra: "Such mutual judg- Sutton, 23 Minn. 50; Henry v. ments are set off against each other Traynor, 42 Minn. 234, 44 N. W. 11;

to avoid the unnecessary ex- Wheaton v. Spooner, 52 Minn, 417, pense of issuing and levying execu- 54 N. W. 372. But in none of the tions in favor of the respective par- cases cited was the levy made after ties,

upon the equitable execution was issued and notice of theory that one judgment is to be sale given, and in all of them the treated as a practical payment pro levy was made to satisfy a demand tanto of that of the reciprocal judg- against the judgment creditor, held ment creditor."

by one not a party to the judgment. In these cases, the court was An execution is the judgment credspeaking of domestic judgments, bu itor's process. As a general rule, it the doctrine of set-off extends to is within his exclusive control, and judgments of different courts and to the officer must obey all reasonable (154 Minn, 252, 191 N. W. 589.) directions from him. The command tion & Debenture Corp. 70 Minn. of the writ is to levy on and sell the 380, 73 N. W. 165. As against the property of the judgment debtor judgment debtor, the assignee acand pay to the judgment creditor quired all the rights of his assignor the proceeds, or so much thereof as two days before the judgment was will satisfy the execution. Gen. attached. The court correctly ruled Stat. 1913, § 7928. The command that the administratrix of T. R. of a writ of attachment is that the Verry's estate was entitled to the unexempt property of the defendant money remaining in the sheriff's shall be attached and kept by the hands after the attorneys' lien had sheriff (Gen. Stat. 1913, $ 7848), been paid and satisfied. and the levy made in response there- 3. C. R. Verry's failure to comply to creates a specific lien on the prop- with the order requiring him to erty and takes it into the custody of make a portion of

Pleading-order the law (Atwater v. Manchester his answer

more to ake more Sav. Bank, 45 Minn. 341-346, 12 definite and certain

definite-failure

to comply. L.R.A. 741, 48 N. W. 187). In the was of no conseinstant case, the judgment creditor quence because the issues tendered would naturally direct the sheriff to by this portion of the answer were go on with the sale of the land. An not litigated at the trial. attaching creditor who is also the 4. The testimony of F. R. Barnes, judgment debtor would naturally coupled with the

coupled with the circumstances oppose the sale. When money was

about which there is no dispute, juspaid to the sheriff to satisfy the exe

tifies the inference that he never was cution, a further conflict would

the real owner of the North Dakota arise. If he obeyed the command of judgment; that George B. Barnes the execution, he would pay the

was such owner, and that he had his

brother buy it so he might use it as money to the execution creditor. If he obeyed the writ of attachment,

a means of getting rid of the Min

nesota judgment. The fact that he would keep the money for the

Barnes's testimony attaching creditor. The process of

Evidence

was not contradictthe law should be allowed to run its

ed did not compel a course, for, if this was not the rule,

finding that in fact there would be no end to the confu

he purchased the North Dakota sion and delays which a judgment judgment for himself, and not for debtor might create.

Kelso

V. his brother. Nelson v. Schmidt, Youngren, 86 Minn. 177, 90 N. W. 153 Minn. 474, 191 N. W. 281, and 316.

the cases there cited. As between the parties to the Many other questions are raised judgment, the assignment from C. in the briefs. They have not been

R. to T. R. Verry overlooked. We do not discuss them Assignment-of judgment-suf- was good, although because the foregoing consideraficiency.

it was not filed. tions dispose of each of the several Carlson v. Smith, 127 Minn. 203, appeals. 149 N. W. 199; Swanson v. Realiza- Each of the judgments is affirmed.

ANNOTATION.
Right of one to summon or charge himself as garnishee.
I. Introduction, 711.

III. Attachment of judgment by judgII. Rule in general:

ment debtor, 718. a. Sustaining right, 712.

IV. Question as one of local law, 720. b. Denying right, 715.

V. Miscellaneous, 720. 1. Introduction.

tion upon which the authorities are Whether the same person may be conflicting. One line of authorities both plaintiff and garnishee is a ques- sustains, while the other denies, the

weight-uncontradicted testimony.

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