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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 the law (Atwater v. Manchester his

Pleading-order answer

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

or

right of a plaintiff to summon statements are, however, dicta, the decharge himself as garnishee. The cision resting on other grounds. jurisdictions on the respective sides To some extent the cases are afare almost exactly equal, with a slight- fected by the particular terms of the ly larger number of cases favoring the local statutes, though many are deright. Under these circumstances it cided on general grounds, and frecan scarcely be said that the weight quently follow precedents without asof authority favors either view. signment of the reasons for the deWhile the reported case (VERRY V. cision. BARNES, ante, 707), in holding that

II. Rule in general. the judgment debtor could not attach his own judgment,—at least, after the

a. Sustaining right. property had been levied on and ad- The doctrine that a plaintiff may vertised for sale,-does not directly summon or charge himself as gardiscuss the question, as such, whether nishee is supported by the following a plaintiff has a right in any event decisions : to summon or charge himself as gar- United States. Graighle v. Not. nishee, yet the decision seems in line

nagle (1816) Pet. C. C. 245, Fed. Cas. with those authorities which deny the

No. 5,679 (Pennsylvania statute); right, and appears to be opposed to a

Sandusky Cement Co. v. A. R. Hamilnumber of cases which have applied ton & Co. (1921) 273 Fed. 596 (folthe doctrine that a plaintiff may make lowing Ohio rule). See also Harrihimself a garnishee, in holding that a

man v. Richardson (1921) 51 App. D. judgment debtor might attach the

C. 24, 273 Fed. 752 (property in judgment. Before this decision in the

plaintiff's possession may

be atBARNES CASE, it would seem that the

tached). weight of authority favored the right

Alabama. Dudley v. Falkner of a plaintiff to summon or charge (1873) 49 Ala. 148 (recognizing rule). himself as garnishee. That decision But see Wooldridge v. Holmes (1885) renders somewhat more doubtful the

78 Ala. 568 (dictum favoring contrary correct rule on the question, but the doctrine). See also Jos. Joseph & authorities seem still to preponderate Bros. Co. v. Hoffman (1911) 173 Ala. slightly in favor of this right.

568, 38 L.R.A.(N.S.) 924, 56 So. 216, Most of the cases involve debts

Ann. Cas. 1914A, 718, under IV. infra, owing by, or judgments obtained

recognizing opposite rule in that against, the plaintiff in garnishment. state. Several cases, however, present the Louisiana, Grayson v. Veeche question of the right of the plaintiff

(1823) 12 Mart. 688, 13 Am. Dec. 384 to attach property in his own posses- (judgment debtor may attach judgsion which belongs to his debtor.

ment); Richardson v. Gurney (1836) 9 The right of the plaintiff to at

La. 285 (same); Citizens' Bank v. tach such property

clearer

Hancock (1883) 35 La. Ann. 41 than his right to garnish a debt ow- (same). ing from himself to the defendant, Maryland. — (Express statute. See but the decisions in general do

cases under V. infra.) not apparently make a distinction in

New York.

Wehle v.

Conner this regard. In Beach v. Fairbanks (1880) 83 N. Y. 231 (judgment debtor (1884) 52 Conn. 167, the court said may attach judgment). that it seemed to be agreed that goods Ohio. Norton v. Norton (1885) in the hands of a party belonging to 43 Ohio St. 509, 3 N. E. 348. his debtor may be attached by a gar- Pennsylvania. - Moyer v. Lobennishee process instituted by himself, geir (1835) 4 Watts, 390, 28 Am. Dec. but that it was not agreed that a debi; 723; Coble v. Nonemaker (1875) 78 owed by a party may be attached by Pa. 501 (recognizing rule); G. B. Hurt that proceeding in a suit brought by v. Fuller Canneries Co. (1919) 263 the debtor upon a claim which he Pa. 238, 106 Atl. 248 (judgment debtor might have against his creditor. The may attach judgment); Pasquinelli v.

seems

Southern Macaroni Mfg. Co. (1922) Pennsylvania statute a foreign attach. 272 Pa. 468, 116 Atl. 372 (same); ment may be levied on a debt due the Hanscom V. Chapin (1905) 27 Pa. defendant in the plaintiff's own Super. Ct. 546.

hands. The court said that the plainTennessee. Boyd V. Bayless tiff would otherwise be excluded (1843) 4 Humph. 386 (judgment debt- from a right enjoyed by every other or may sue for injunction and at- creditor. But the position was taken tach judgment). See also Arledge v. that the operation of the judgment is White (1858) 1 Head, 241 (rule im- different where the plaintiff in the plied).

attachment is a third person than Vermont, Lyman v. Wood (1869) where one attaches funds in his own 42 Vt. 113.

hands and enters judgment against Wisconsin. See Gallum v. Weil the defendant for a debt alleged to be (1903) 116 Wis. 236, 92 N. W. 1091 due; that it would be dangerous to (property in possession of plaintiff hold that a judgment thus obtained may be attached).

in a proceeding to which the plaintiff England. - Hodges v. Cox (1905) himself is the only party should be Cro. Eliz, pt. 2, p. 843, 78 Eng. Re- even prima facie evidence, for it print, 1070. See also other English would enable a party to make evidence cases cited infra, this subdivision. of a debt where none existed. And it

In Graighle v. Notnagle (1816) Pet. was held accordingly that if a deC. C. 245, Fed. Cas. No. 5,679, the fendant seeks to avail himself of a court sustained the levy of a foreign prior attachment of the plaintiff's attachment under the Pennsylvania debt in his own hands, he must show statute upon a debt due defendants in the existence of the original debt on the hands of plaintiff in the attach- which the judgment in the foreign ment which had issued after suit was attachment was rendered. brought to recover the debt. The And in Coble v. Nonemaker (1875) court, though relying somewhat on 78 Pa. 501, the court said that a perthe general language of the statute son may attach goods in his own extending the remedy to all creditors hands belonging to the defendant, or without distinction, thought that no money which he himself owes the degeneral principle of law was violated, fendant. and no injustice done to the defend- In Egolf Bldg. & L. Asso, v. Cleaver ant in the attachment, by this mode (1910) 228 Pa. 60, 77 Atl. 245, it was of proceeding. To the objection of held that a treasurer of a corporation, the manifest absurdity of process is- in order to collect his private debt, suing against plaintiff in attachment may attach stock of his debtor in the in his own suit, of his answering to corporation by causing himself as his own interrogatories, and of being treasurer to be summoned as garsubject to execution for a debt due nishee, although his attorney was also himself, the court replied that, be- solicitor for the corporation, and at cause the effect of an attachment plaintiff's request directed the sheriff suit might be defeated unless the to make no service upon the defendplaintiff were armed with coercive ant. measures against the garnishee, he And in Pasquinelli v. Southern Maccertainly could not be required to use aroni Mfg. Co. (1922) 272 Pa. 468, 116 those measures whether they were Atl. 372, the court held that the plainnecessary or not; and where the tiff in an action of foreign attachment garnishee is himself the plaintiff might attach money in his own hands there can be no necessity for a sum

belonging to the defendant. mons, scire facias, interrogatories, or Also, in G. B. Hurt v. Fuller Canany other coercive process against neries Co. (1919) 263 Pa. 238, 106 Atl. him.

248, the court said that there was no Moyer v. Lobengeir (1835) 4 Watts difference in principle between the (Pa.) 390, 28 Am. Dec. 723, also sup- attachment of goods and of money, ports the doctrine that under the and held that the plaintiff in a foreign attachment might attach in his on the language of the statute proown hands money belonging to the de- viding the remedy, and said that the fendant.

case at bar was within both the terms And it was said in Hanscom V. and spirit of the statute, which apChapin (1905) 27 Pa. Super. Ct. 546, plied to every person indebted to anthat a person may, by foreign at- other. With reference to the suptachment, attach goods in his own posed difficulty of enforcing the judghands belonging to a defendant, or ment against a trustee who stands in money which he himself owes to a this double relation to the suit, the defendant; but that the mere penden- court thought that any embarrasscy of such an attachment does not ment likely to be encountered as bebar his creditor, the defendant in the tween the plaintiffs and the trustee attachment, from suing and obtaining was a matter of no interest or imporjudgment for the amount of the debt tance to the defendant. due him; nor, even if he has obtained And it has been held that a trustee judgment in the attachment, is this will not be discharged because he was a bar to an action against him.

plaintiff's attorney, and as such made And in Hanscom v. Chapin (Pa.) and indorsed the writ, and entered supra, where, in an action of assump- the action in court, afterwards withsit, the defense was that, by foreign drawing his appearance, there being attachment instituted by the defend- no suggestion of fraud, and no claim ant before the assumpsit suit was be- that the rights of the principal degun, the money alleged to be due to fendant were in any way prejudiced the plaintiff was attached by the de- by such procedure. Kelley v. McMinnifendant in his hands as garnishee, man (1878) 58 N. H. 88. The court and judgment was rendered in the as- said, however, that such practice was sumpsit action for want of a sufficient irregular and not to be encouraged. affidavit of defense, it was held that In Cleveland Sierra Min. Co. v. the defendant was not, as matter of Sears Union Water Co. (1878) 4 Ohio right, entitled to a stay of execution Dec. Reprint, 208, it was queried pending the proceedings in foreign at- whether plaintiff could garnish himtachment, unless, at least, he offered self, under the Ohio statute providto pay the amount of the judgmenting that he may have garnishee procinto court. The court said it could ess whenever he shall file an affidavit conceive of cases where, in order to stating that any person or any corsecure the attaching creditor in his poration is indebted to the defendant. rights of priority and the lien which But in Norton v. Norton (1885) 43 the attachment gave him, he could Ohio St. 509, 3 N. E. 348, the court appropriately ask to have execution held that plaintiff in attachment, stayed until the determination of the whether

person

corporation, attachment, this being a common might garnish himself under the Ohio practice where the attaching creditor statute making any person or corporais a third person; that the court did tion liable as garnishee upon due not say that circumstance might not service, and said that no good reason entitle one who had attached money in could be assigned why an attaching his own hands to the same relief, but creditor may not reach money or credthat it could conceive of no

its in his own hands by garnishee where he could demand it as matter

process as well as any other creditor. of right unless there was coupled with

In Sandusky Cement Co. V. A. R. his application an offer to pay the Hamilton & Co. (1921) 273 Fed. 596, amount of the judgment into court.

the court held, following the rule in In Vermont it was held that a co- Ohio where the case arose, that the plaintiff may be named as trustee and plaintiff in an action in which the sumchargeable as such, as well for a debt mọns is returned as to the defendant, or credit as for a specific article of “Not found,” may make himself garpersonal property. Lyman v. Wood nishee, admitting an indebtedness to (1869) 42 Vt. 113. The court relied the defendant, and so acquire jurisdic

a

or

case

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