Bryant v. Bank of California

McKEE, J. On the 1st of May, 1877, the plaintiff, A. S. Bryant, recovered a money judgment, by confession, against J. M. Quimbie, upon which an execution was issued, and put in the hands of the sheriff of the city and county of San Francisco for collection, according to law. While the execution was in the hands of the officer, unlevied and unsatisfied, in whole or in part, Bryant claims to have commenced proceedings, supplementary to execution, for the examination of the judgment debtor as to his property, and against A. J. Ralston, William Sharon, Thomas Brown and D. O. Milla as garnishees, which resulted, as it is alleged in the judicial order authorizing the institution of a suit against A. J. Ralston and the Bank of California, garnishees, for the recovery of certain moneys which, as it is claimed the testimony of the garnishees [476]discloses, were deposited with the Bank of California by the judgment debtor in the year 1876; and it is by virtue of that alleged order that the plaintiff commenced the action in hand.

The complaint contains specific averments of proceedings, supplementary to execution, in the case of Bryant v. Quimbie. Issue was taken upon it, by specific denials of each of its averments. On the trial the plaintiff, for the purpose of proving compliance with the law under which the alleged supplemental proceedings were taken, and which resulted in the order authorizing the institution of the suit, offered in evidence the papers constituting the proceedings. These consisted of certain- affidavits, made by the attorney for Bryant (the orders thereon purporting to have been signed by the judge of the court) for the examination of the judgment debtor and of the other persons named as garnishees, certain papers purporting to contain the testimony of the judgment debtor and garnishees, taken pursuant to said orders, and the final order, predicated upon that testimony, purporting to have been signed by the judge of the court, authorizing the plaintiff to sue. Bach of these papers was entitled in- the case of Bryant v. Quimbie; but to each and all of them, when offered in evidence, the defendant objected, on the grounds that they constituted no part of the record of the case of Bryant v. Quimbie, and did not come from the files of the court, but came from the custody of the attorney for the plaintiff, and that they were incompetent, irrelevant, and immaterial. The objections were overruled; and the ruling is assigned as error.

As matter of fact, not one of the papers offered in evidence was indorsed filed, nor does the record show that any of them were produced from the custody of the clerk of the court in which the order authorizing the suit purports to have been rendered. Affirmatively, it does appear that they all came from the custody of the attorney of the plaintiff; and, assuming that the judgment debtor, as defendant in the original action, had notice of the proceedings in the action supplementary to execution, in which an order was made which operated in law to transfer his interest in certain property for the satisfaction of the judgment, the question arises, Had the judge of the court, upon the papers in evidence, jurisdiction to make the order?