Herrlich v. Kaufmann

McFarland, J. John McKenzie was a stock broker, and on December 3, 1886, made an assignment for the benefit of his creditors to the defendant, C. IT. Kaufmann, pursuant to the provisions of the Civil Code on the subject. Prior and down to the assignment McKenzie had been doing a stock business with one Margaret McDonald, and owed her, or some one for whom [273]she was acting, several thousand dollars. Julie Herrlich, the plaintiff in the case at bar, recovered a judgment (the date of which is in dispute) against said McDonald for $6,210.86; and on December 31, 1886, she had an execution issued upon said judgment, and under said execution a notice of garnishment was served on the defendant Kaufmaun, notifying him that all moneys in his hands due Mrs. McDonald were levied upon and attached. There was another execution and notice of garnishment of a similar character in December, 1887, and another in January, 1889. Thereafter, in February, 1889, this present action was commenced by said Julie Herrlich to recover from Kaufmann the amount alleged to be due to said Margaret McDonald on account of her dealings with McKenzie. Other parties were made defendants; and John F. Hanlon was made a plaintiff upon the allegation that he owned a fractional part of the judgment in the case of Herrlich v. McDonald. The court found that there was due to Mi’s. McDonald upon her said stock business with McKenzie the sum of $5,769.52, and judgment was rendered against Kaufmann for that amount, the judgment being “that the plaintiffs have and receive of and from the defendant, C. H. Kaufmaun, the sum of $5,769.52, and that execution issue therefor.” Kaufmann appeals from the judgment and from an order denying him a new trial.

Appellant contends that the complaint does not state facts sufficient to constitute a cause of action. He also makes a number of other points, as, for instance, that Kaufmann being an assignee under the code, the money was in custodia legis, and not subject to levy; that Mrs. McDonald could not have maintained this action, and, therefore, as plaintiffs can have no greater right by virtue of the garnishment than their judgment debtor had, they cannot maintain it; that the court erred in refusing to make certain assignees of Mrs. McDonald defendants; that as the notice of garnishment was served December 31, 1886, the cause of action founded on it was barred before the action was commenced; that the judgment in Herrlich v. McDonald was rendered in November, 1881, and was itself outlawed; and that various fatal errors were committed in rulings upon the admissibility of evidence; but these and other points made by appellant we do not deem it necessary to discuss, because, in our