Bunnell v. Wynns

SHINN, J.,

pro

tem.

Appeal from an order vacating a judgment against a garnishee.

In this action to recover the value of the use of certain automobile trucks and trailers and upon an account stated against the defendant B. Wynns et al., a writ of attachment was issued and served upon Basich Brothers Construction Company, a corporation, attaching any money or property of the defendants and any credits due to defendants from the garnishee. The garnishee made a return that it had no money or property belonging to any of the defendants under its control or in its possession and that it was not indebted to any of said defendants. Thereafter an order was made for the garnishee to appear before a referee to be examined in connection with the garnishment, and after service thereof a hearing was had at

[116]

which the garnishee was represented, following which the referee made findings and a report that the garnishee was indebted to one of the defendants in the sum of $3,362.44. Thereafter, and without notice to the garnishee, this action was tried before a judge

pro tempore

of the superior court upon stipulation of plaintiff and defendants that it might be so tried, but without the stipulation or consent of the garnishee. Upon the trial plaintiff recovered a judgment of $5,229.25, against the defendants, and a judgment in the sum of $3,362.44, against the garnishee. Thereafter the garnishee made a motion to vacate and set aside the judgment, which motion was granted, and a motion for new trial, which was not ruled upon by the court.

After the hearing before the referee, the court or a judge thereof could have ordered personal property capable of manual delivery to be delivered to the sheriff. (Code Civ. Proc., sec. 545.) What the referee attempted to do was to make an adjudication that the garnishee was indebted to the defendants in the sum of $3,362.44. There is no provision of the code authorizing such an adjudication in a summary proceeding where the garnishee denies the debt. While section 544 of the Code of Civil Procedure provides that a garnishee who fails to deliver property or pay debts to the sheriff after attachment is liable to the plaintiff for the amount thereof, neither that section nor section 545 authorizes the court or referee to make an adjudication as to the matter of the indebtedness of the garnishee to a party whose property is attached. The procedure under sections 544 and 545 is in the nature of an inquiry as to the property belonging to the attachment defendants. The reference is had in such matters for the information of the court and not for the purpose of trying questions of title. Procedure to subject property in the hands of third persons to judgments is provided by sections 719 and 720 of the Code of Civil Procedure. Where the garnishee claims no interest in the property or does not deny the debt, an order may be made to subject the property to the judgment under section 719, but if he claims an interest in the property or denies the debt the court or referee has no power to enter a summary order or judgment adjudicating the validity of his claims, but such adjudication must be made in an independent action.