Johnson v. Lamping

California Supreme Court Jul 1, 1867Published

Before: Sanderson

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Holding. The court held that a garnishee is not indebted to a debtor for the purposes of an attachment when the underlying liability arises from a potential tort that the debtor has not elected to waive, or when the debtor has entered into a valid contract governing the property in question. Furthermore, a creditor cannot unilaterally elect to treat a sale as void or a tort as a debt on behalf of their debtor to satisfy an attachment.

Issues

Whether a garnishee is indebted to a debtor within the meaning of the Practice Act when the garnishee's actions constitute a potential tort that the debtor has not waived.
Whether a creditor may elect to treat a garnishee as a debtor for the purposes of attachment when the debtor has not done so.
Whether a valid contract between a garnishee and a debtor precludes the existence of a debt subject to attachment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We merely hold that the case presented fails to make the defendant a debtor of the company within reach of the plaintiff’s attachment at the time it was served.”

Synopsis

Debtor and Tortfeasor.—L. recovered judgment against R. Co., from which R. Co. appealed to the Supreme Court, where the judgment was modified by reducing the rate of interest and striking out the requirement for its payment in gold coin. ¡No stay of proceedings, pending said appeal, having been obtained, ¡L. caused the mining claims of R. Co. to be sold under execution, issued on said judgment before said reversal, and became the purchaser for the amount of his judgment—he paying to the Sheriff his legal fees, and giving receipt on his judgment for the amount of his bid. Within six months thereafter, L. received from the working of said claims seven thousand dollars over the expenses for said work : held, first, on the assumption that said modification of judgment per se rendered said sale void, that the working of said claims by L. was a trespass, and he a tortfeasor, and not a debtor of R. Co. in the sense of the statute in relation to attachments, (Pr. Act, Sec. 126 ;) second, that while R. Co., at their option, could hold L. responsible as tortfeasor, or, by waiving the tort, treat him as their debtor, yet until the tort should be so waived by R. Co., neither they nor their creditors could treat L. as a debtor for said amount realized by him from working said claims.

Idem.—Where, in such a case, R. Co. had ceased to work said claims before said sale, and immediately after it had been made entered into a contract with L., by which 'it was stipulated that R. Co. should work the claims during the time allowed for redemption, and pay the gross proceeds to L., who should pay the expenses of said working and pay wages to R. Co. for said working, whether the claims should yield a profit or not, and under said contract ¡G. received from R. Co. gold dust of the value of said seven thousand dollars over the expenses of such work : held, that such contract was valid, and said gold dust became the property of ¡L., and thereby he became neither debtor nor tortfeasor.

Idem—Setting Aside Execution Sale.—Where mining claims were sold to the judgment creditor, on an execution issued on a judgment rendered against the owners for the full amount of said judgment, and afterward said judgment was reduced in amount by this Court on an appeal taken therefrom by said owners : held, that said sale was valid when made, but upon said modification of the judgment was liable to be set aside, on the application therefor by said owners, either by this Court or the Court below, upon the return of the case, or by action by the owners against the purchaser; but except upon such application or action the validity of the sale will remain unaffected by the modification of said judgment.

Idem.—Until said owners elect to treat said sale as valid, the judgment creditor will not become the debtor of the owners of said mining claims for the amount of said purchase price bid by him in excess of the amount of the judgment, as modified on said appeal.

By the Court, Sanderson, J. : This is an action by an attaching creditor against a garnishee. The case comes here upon the judgment roll, and the only question is whether the' defendant was indebted to the debtors of the plaintiff at the time the attachment was served upon him, within the meaning of the one hundred and twenty-sixth section of the Practice Act.

The respondent makes certain points as to whether the debtors of the plaintiff are the same as the creditors of the defendant, which we pass without further notice. We assume, for the purposes of our judgment, that the debtors of the plaintiff are the same as the creditors, if such, of the defendant, and that the latter, if at all, is indebted to them jointly, as they are conceded to be jointly indebted to the plaintiff.

It appears from the findings that the defendant, some time previous to the suit of the plaintiff against the Red Star Mining Company, sued that company and obtained a judgment against it by default. The judgment was made to draw a certain rate of interest without there having been any prayer for such relief in the complaint. It was also made payable in gold coin, although the action was not upon a gold contract, as this Court subsequently held. It was also erroneous in certain other respects which need not be mentioned here. The case will be found reported in 27 Cal. 99. On appeal to this Court the judgment was modified by striking out the clauses in relation to interest and payment in gold coin, and in certain other respects to which reference has been made. There was no stay of proceedings in the Court below, and before the decision of the case by this Court the defendant had taken out an execution and caused the mining claims of the Red Star Mining Company to be sold. At the sale the defendant bid the full sum for which his execution called and became the purchaser. He paid the Sheriff no money, except his fees on the execution, but gave him a receipt, as is usual in such cases, for a sum equal [299]to the face of the execution less the fees paid to the Sheriff. The Led Star Mining Company had ceased to work their mine prior to its sale. After the sale a contract was made between the defendant and the company, by which the latter agreed to work the mine during the time allowed for redemption and pay over the proceeds to the defendant, and the latter agreed to pay all the expenses of working and to pay the company wages in any event, whether the mine should yield a profit or not. Under this contract the defendant received from the mine, over and above expenses, the sum of seven thousand dollars in gold dust.

Johnson v. Lamping

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