Water Supply Co. v. Sarnow

ALLEN, J.

The complaint avers that in January, 1902, defendant Sarnow obtained a judgment against plaintiff for $84-1; that in May and October following Josie Sullivan caused to be served upon the secretary of plaintiff an execution issued out of a judgment theretofore rendered in her favor and against Sarnow, whereby she sought to levy upon and hold all property or credits in plaintiff’s hands due Sarnow; that plaintiff is ignorant of the rights of the parties to the proceeds of said judgment, and would be put to hazard if compelled to judge between the respective claims, and avers that it is willing to pay the full amount of said judgment to whomsoever the court may direct, pending the hearing, with the usual prayer, requiring the interpleader to be discharged, etc.

To this complaint the general demurrer of each of the defendants was overruled; and the defendant Sullivan thereupon filed, as was required, a pleading which she denominated a cross-complaint, in which it is averred that judgment in her favor against Sarnow was rendered in February, 1897, the amount of which, including interest, was at the date of filing said claim, $742.03; that on May 11, 1902, Sullivan filed in the court in which the judgment was rendered her affidavit, setting out the rendition and non-payment of the judgment; that more than five years had elapsed since the entry, and that Sarnow now has property out of which it could be made. The court, upon presentation of such affi

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davit, made its order that an execution issue, and the same was issued; that on May 20, 1902, the sheriff duly levied on all moneys, debts, and credits of Sarnow in the hands of plaintiff, and that in order to make such levy the sheriff served upon the plaintiff’s secretary, and left with him, notice that the same were attached by virtue of said writ; that subsequently the sheriff returned said execution unsatisfied ; that when the execution was levied there was $950.35 in the plaintiff’s hands belonging to Sarnow; that afterwards, in October, 1902, another execution was issued out of said judgment so rendered, in favor of Sullivan and against Sarnow, which was duly levied. And the same allegations are set out as were made in reference to the first levy.

To this cross-complaint Sarnow demurred generally, and the same was sustained by the court; and Sullivan not desiring to amend, the court found that Sullivan acquired no rights to the money in the hands of plaintiff by virtue of such levies, that Sarnow was entitled to the money, and by its judgment ordered that plaintiff pay to the clerk the amount of said judgment in favor of Sarnow; that upon such payment the judgment should be satisfied by the clerk, and the money paid to Sarnow. From this judgment against her, and in favor of Sarnow, the defendant Sullivan appeals.