Lannan v. Garrett

BARNARD, P. J.

This is a proceeding, under section 689 of the Code of Civil Procedure, to determine title to property after the filing of third party claims.

The plaintiff brought an action against the defendant Garrett to recover some $7,000 on certain promissory notes. A writ of attachment was issued as a result of which about $5,550 came into the hands of the sheriff. Three third party claims were filed totalling an amount equal to the funds in the hands of the sheriff. Each of these parties claimed to hold a note signed by Garrett secured by an assignment of a corresponding part of the fund which had been attached, the respective notes and assignments being all dated before suit was filed and attachment issued. The three claims were consolidated for hearing and the plaintiff sought to prove that the notes and assignments were given by Garrett to the claimants through a fraudulent conspiracy to cover up or transfer the funds in question, in order to prevent their being applied in satisfaction of any judgment that might be obtained. Judgment in this proceeding was in favor of the third party claimants and the plaintiff has appealed upon a bill of exceptions, making two assignments of error.

Counsel for appellant asked one of the claimants, on cross-examination, whether or not she knew of the pendency of this action at the time she made the loan to Garrett. An objection was made whereupon counsel made an offer of proof that the witness knew of the pendency of the action at the

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time the loan was made, and that by purporting to loan money to Garrett she had taken part in a conspiracy to prevent the application of the funds to the debt due to appellant. The court sustained the objection and refused to permit any further offer of proof, this being the ground of the first exception.

With respect to the second exception, while the respondent Garrett was testifying he was asked by counsel for the appellant what he had done with the $3,000 which it was claimed had been loaned him by Laura Peters. An objection was made on the grounds that the question was incompetent, irrelevant and immaterial. Counsel for the appellant then stated that the purpose of the question was to ascertain whether or not the witness and the third party claimants had entered into a conspiracy with respect to the funds in question. The court sustained the objection and refused to permit the appellant to make any further effort to trace the funds which Garrett claimed to have borrowed from the third party claimants.