Schapiro v. Hilliker

California Court of Appeal Feb 21, 1930 No. Docket No. 5707.Published

Before: Burnell

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Holding. The court held that a complaint against a garnishee fails to state a cause of action if it does not directly aver that the underlying judgment remains unpaid, as allegations of failed collection efforts by a sheriff are insufficient.

Issues

Whether a garnishee may deny the existence of an unpaid balance on a judgment based on information and belief when not a party to the original action.
Whether a complaint against a garnishee sufficiently states a cause of action by alleging failed sheriff collection efforts rather than directly averring nonpayment of the judgment.

Disposition. reversed

Quotations verified verbatim against the opinion

“The nonpayment of all or a portion of the judgment was of course a prerequisite to the liability of the garnishee in an action to enforce payment by him.”

“As the complaint thus failed to state one of the facts material to a cause of action judgment on the pleadings should not have been granted on the plaintiff’s motion.”

[199]

BURNELL, J.,

pro tem.

This appeal is from a judgment on the pleadings in an action against a garnishee. The following facts alleged in the complaint are not traversed by the answer: That on June 24, 1925, the plaintiff commenced an action against one Kathryn Hilliker for the recovery of $1100 and garnisheed all moneys in the hands of the defendant herein due from him to said Kathryn Hilliker; that on August 28, 1925, appellant answered the garnishment by stating that he was indebted to Kathryn Hilliker in the sum of $5,800; that on March 19, 1926, “upon stipulation and by order of the court all moneys over and above the sum of $1,500 was [sic] released from said attachment, and the said sum of $1,500 remained in the hands of said defendant subject to said attachment”; that on October 15, 1926, a judgment was entered in favor of plaintiff and against Kathryn Hilliker in the aggregate sum of $1130.70, and that thereafter $200 was collected by the sheriff on a levy and applied to the partial satisfaction of the judgment. It is next alleged that the sheriff “has returned the judgment unsatisfied as to the unpaid balance thereof-to-wit, the sum of $930.70,” and that subsequent to the levy above referred to “a third party levy” was made by the sheriff “and demand duly made upon the said defendant to pay the said judgment pursuant to his return of said attachment,” that the defendant has failed and refused to pay the same and that “the same was so returned by the sheriff ... as wholly unsatisfied.” There follows an allegation that the defendant is indebted to the plaintiff in the sum of $930.70, none of which has been paid. The answer denies on information and belief “that there is an unpaid balance upon said judgment in the sum of $930.70 or in any sum at all,” and denies the alleged indebtedness.

The only point discussed in the briefs of the respective parties is the sufficiency of the denial of the existence of an unpaid balance on the judgment. As to this it is argued by appellant that whether or not the judgment was unpaid was a material issue the facts of which were not presumably within his knowledge, he not being a party to the original action, and that the payment or nonpayment was not a

[200]

Schapiro v. Hilliker

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BURNELL, J.,

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