Roberts & Co. v. Landecker

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. The plaintiffs brought two suits by attachment against John Hertzinger, and served copies of the writs upon the defendant Landecker, with a notice that all debts owing by him to Hertzinger, and all other personal property in his possession, or under his control, belonging to the defendant in the attachment-suits, were attached in pursuance of said writs. The plaintiffs pursued these suits against Hertzinger to judgments, upon which executions were issued, and returned no property found. The plaintiffs then brought this suit against Landecker, and alleged in their complaint that at the time of the garnishment the defendant had in his possession goods of Hertzinger, of the value of five thousand dollars, which goods he afterwards fraudulently disposed of, and converted the proceeds to his own use. To this complaint the defendant demurred, the demurrer was sustained, and the plaintiffs appealed.

The facts stated in the complaint being taken as true, the only question is whether they can constitute a cause of action in this form. The defendant was not brought before the Court or Judge under the provisions of the 128th section of the Code; and his counsel take the ground that no suit can be brought against him until he is examined, under oath, respecting the alleged property of the defendant in the two attachment-suits; and that after such examination, had such been had, the plaintiffs could only proceed under sections 241-2-3-4 of the Code, in reference to proceedings supplementary to the execution.

It is well settled that proceedings by attachment are statutory and special, and must be strictly pursued. So far, then, as the Attachment Law affords the plaintiffs a remedy, they were bound to pursue it. Having once invoked the stringent provisions in reference to attachments, the plaintiffs could not resort to other remedies to the prejudice of defendant, so long as they relied upon their attachment-lien.

But, while the provisions of the code in reference to this rem[266]edy must be strictly construed and followed, they should be fairly interpreted; so as to give them a consistent and efficient operation in proper cases.

The 127th section makes the garnishee liable to the plaintiff in the attachment-suit for the amount of such property, unless the same be delivered up or transferred to the sheriff. Under the provisions of this section, the garnishee may protect himself from all further liability by delivering the property to the sheriff. This is a right which may be voluntarily exercised by the garnishee. If he delivers to the sheriff any property, he cannot be made further responsible for the property delivered. But the provisions of the 128th section were intended for the security of the plaintiff, who may cause the garnishee to appear and answer under oath; and the Court or Judge may require the delivery of the property to the sheriff. The plaintiff may not be willing to trust to the personal responsibility of the garnishee, pending the attachment proceedings, and may have the best reasons for demanding the delivery of the property to the sheriff. We cannot see, however, that this section was intended to confer a privilege upon the garnishee. The privilege of examination on oath is for the security of the plaintiff and not of the garnishee. If the statement of the garnishee constituted the measure and limit of his liability, then he would have the right to insist upon it, as a condition precedent to any suit against him.