Carter v. Los Angeles Nat'l. Bank

Temple, J. Plaintiff brought suit against the Richardson-Kimball Company, garnisheed the defendant, on attachment, and afterward recovered judgment against the Richardson-Kimball Company. An execution was issued against the Richardson-Kimball Company upon which plaintiff realized a portion of his debt, but left seven hundred and seventy-seven dollars andthirty-five cents still due and unpaid.

At the time the notice of garnishment was served the defendant had in its possession certain notes due the Richardson-Kimball Company, which it held as collateral. Subsequent to the attachment, but prior to the bringing of this suit, defendant had collected upon the securities which it so held enough to satisfy its der mand against the Richardson-Kimball Company, and thirteen hundred and fifty-six dollars and twenty-two cents over and above its demand. Defendant answered, admitting such facts, and stating that other parties were asserting claims to the money in its hands, and asking that they be brought in, and that the court determine to whom the money should be paid. There[372]after, the appellant intervened. The court held that plaintiff was entitled to the money. The appeal is from the judgment, without a bill of exceptions.

The sole point made on this appeal is that the complaint fails to state a cause of action: 1. Because the action is based upon a garnishment under section 544 of the Code of Civil Procedure, without procuring an order requiring defendant—the garnishee—to appear and answer, and without any order authorizing an action against the garnishee under section 720 of the Code of Civil Procedure; and 2. Defendant’s liability under the garnishment is barred by the statute of limitations.

The first point cannot be sustained. The proceeding supplementary to execution is in the nature of an action in which definite relief may be had. In most states express provision is made for a trial and a judgment which shall conclude the rights of all parties, as in proceedings upon a creditor’s bill.

Nothing of that kind is provided for under the proceedings on attachment in this state. On the contrary, section 544 provides that the garnishee shall be directly liable to the attaching creditor “for the amount of such credits, property, or debts, until the attachment is discharged or any judgment recovered by him be satisfied.”

This question was decided in Roberts v. Landecker, 9 Cal. 262. In all material respects the practice act was identical with the code.