Kennedy v. Hibernia Savings & Loan Society

Crockett, J., delivered the opinion, of the Court: The plaintiffs commenced an action against one O’Began, on a money demand, and took out an attachment, under which the defendant, a banking corporation, it is claimed, was summoned as a garnishee. Similar proceedings were had in behalf of F. T. and George Fisen, also creditors of O’Regan, who have assigned their demand to the plaintiffs. In each case judgment was duly rendered against O’Regan; but subsequently to the alleged service of the garnishment, the defendant paid to one Tucker the amount standing on its books to the credit of O’Regan, Tucker having produced to the officers of the bank an assignment of the fund in due form, executed by O’Regan prior to the alleged service of the garnishment. This action is brought to recover from the bank the amount paid to Tucker, or as much thereof as will satisfy the two judgments; and the complaint alleges that the assignment from O’Regan to Tucker was fraudulent and colorable, except as to the sum of $280, which it is admitted was due from the former to the latter; and it is claimed that in the payment to Tucker, after service of the garnishment, the defendant acted at its peril, and is responsible to the plaintiffs in the same manner as if no payment had been made. In respect to the service of the garnishment, the allegation of the complaint is, that it was “duly served on the Hibernia Savings and Loan Society, by delivering to J. K. Handy, then cashier and manager of defendants’ said Society, a true copy of said attachment, with notice that all debts or credits owing by the Society to O’Regan were attached.” In reply to this position of the complaint, the answer denies that Handy is or ever was “their Cashier or manager,” or that he was, at any time, ‘ ‘the President or head Secretary, Cashier or managing agent,” of the corporation. This raised a direct issue as to the sufficiency of the service of the garnishment; and it was therefore incumbent on the plaintiffs to prove the allegation of the complaint in that respect. The only testimony on this point was that of Handy himself, as follows : “ I was Teller of this bank (Hibernia Savings and Loan Society.) My [153]duties were to receive and pay out all moneys that came into and went out from the bank. The attachments in question were served on me. I examined O’Began’s account, and reported to the officer serving the attachments that he had moneys there on deposit, to wit, $2,000. I, at the time, made an entry in pencil of the attachments on the bank book.” This is the only proof of service, and it is manifestly insufficient.

Section twenty-nine of the Practice Act prescribes the method of serving a summons on a corporation, to wit: By delivering a copy to “the President or other head of the corporation, Secretary, Cashier, or managing agent thereof.” Handy did not stand in either of these relations to the bank. He was only the Teller, whose duty it was to receive and pay out money. So far as the proof shows, he was not the President or head of the corporation, nor its Cashier, having the care and custody of its money and securities, nor its Secretary or managing agent. If he occupied either of these relations, the fact was capable of proof, and there was no evidence of it in the cause. But, it is said that Section 29 relates only to the service of a summons, and has no application to the service of a garnishment. Section 126 provides that if any person shall have in his possession or under his control any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, “the Sheriff shall serve upon such person a copy of the writ, and a notice that such credits or other property or debts are attached in pursuance of such writ.” There is no special direction as to how the service is to be made on a corporation. Section 125, in the fifth subdivision, provides that debits and credits may be attached by leaving with the person owing such debts, or having in his possession or under his control such credits, “ or with his agent,” a copy of the writ., The term “agent,” as employed in this connection, when applied to the service of a garnishment on a corporation must be construed to mean the “managing agent.” The next preceding subdivision prescribes how stock or shares, or interest in stock or shares of any corpor