Minardi v. Collopy

SHENK, J.

These are appeals by the plaintiff in the one instance, and by the third party claimant A. L. Castle, Inc., in the other, from orders made during proceedings pursuant to

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the garnishment of funds owing to the defendants from the sale of a bean crop grown by them.

The plaintiff commenced an action on a promissory note for $11,870.43 and for an accounting of one-half the proceeds from the sale of the bean crop allegedly assigned to him by the defendants. On August 3, 1954, he caused a garnishment to be levied on the funds then due from the crop sale. On August 25, the third party claimant, John L. Stevenson, filed with the sheriff his claim on funds which might come into the sheriff’s possession pursuant to the garnishment, claiming under an alleged crop mortgage and assignment from the defendants. Thereafter the Castle corporation filed its claim with the sheriff based on an alleged first assignment from the defendants.

Judgment was entered for the plaintiff against the defendants and on levy of execution the garnishee delivered to the sheriff the sum of $4,377.84 due on the sale of the crop and in its possession. By agreement of the plaintiff and the third party claimants a hearing on the question of title to the fund was set for December 20. Prior to that time, however, counsel for Stevenson, by letter to the court, requested that the matter be placed off calendar on the ground that the third party claims had been filed at a time when no funds were in the hands of the sheriff and were therefore premature. An ex parte minute order was made on December 14 placing the matter off calendar. On or about that same day Stevenson filed a new third party claim, as did Castle on the 17th of December. Both claims were similar to their predecessors except that the cash credits were now described as in the hands of the sheriff.

On the 20th of December the plaintiff, who had no previous notice that the matter had been ordered off calendar, appeared and urged that it be heard. The court consented to hear him and granted his motion to dismiss the petition of third party claimants, the minute order reading: “December 20, 1954, Cause before the Court on oral motion of Mr. J. B. Longinotti, Esq., counsel the motion to dismiss the petition of Third Party Claim is presented and submitted to the Court. Whereupon the Court makes its order dismissing the Petition for Third Party Claim.” However, the written order prepared by the plaintiffs’ attorney and signed by the judge in addition to ordering a dismissal “Further Ordered that the Third Party Claim filed by the said JOHN L. Stevenson on August 25, 1954, and the Third Party Claim filed by A. L. Castle,