Hassie v. God is with Us Congregation , 35 Cal. 378 ( 1868 )

By the Court, Sanderson, J.:

This is an action by an attaching creditor against a garnishee, founded upon the one hundred and twenty-seventh section of the Practice Act.

On the 26th of August, 1864, the defendant entered into a written contract with one Davis, by which the latter agreed to build for the former a synagogue for the sum of seventy-three thousand and six hundred dollars, to be paid to him or his assigns, in installments, as the work progressed, upon the certificates of the defendant’s architect.

On the third of September following, Davis entered into a wufitten contract with one Kincaid, by which the latter agreed to do all the brickwork for the sum of thirty-three thousand two hundred and seventy-five dollars, to be paid in installments as the work progressed, upon certificates of the architect. By the terms of this contract Davis set apart and assigned to Kincaid thirty-three thousand two hundred and seventy-live dollars of the seventy-three thousand and six hundred dollars called for by his own contract with the defendant.

On the 28th of January, 1865, there had become due from the defendant, for work done upon the synagogue, the sum of live thousand dollars. The work had been done by Kincaid, under his contract with Davis, and on that day defendant’s architect delivered to Kincaid a certificate, addressed to the Building Committee of the defendant, stating that the sum of five thousand dollars was due to Davis for work done upon the synagogue, as per contract, and that the same was payable to Kincaid upon Davis’ indorsement of the certificate. Without any indorsement by Davis, the defendant, on the same day, advanced to Kincaid the sum of one thousand dollars.

On the twenty-ninth of January the plaintiffs sued out an attachment against Kincaid, and garnished the defendant.

On the thirtieth of January the defendant, notwithstanding the garnishment, paid the remaining four thousand dollars to Davis, who receipted the certificate in full, and, thereafter, paid over the money to Kincaid. This was done by the defendant with full notice of Kincaid’s contract with Davis, and that the work for which payment was being made had been performed by Kincaid, under that contract.

Upon the foregoing facts the Court below held that the contract between Davis and Kincaid operated as an assignment of the money to become due to Davis from the defendant to the amount of thirty-three thousand two hundred and seventy-five dollars, and that the amount thus assigned became due and payable to Kincaid in installments upon the delivery to him of the architect’s certificates; and that at the time the defendant was garnished there was due from it to Kincaid the sum of four thousand dollars, for which judgment was entered against defendant.

It is well settled that the word “ debt,” as used in the law of garnishment,' includes only legal debts—causes of action upon which the defendant in the attachment, under the common law practice, can maintain an action of debt, or indebitatus assurrqosit, and not mere equity claims.

In Hoyt v. Swift, 13 Verm. 133, said Mr. Justice Collamer: “ They must be such debts as the defendant can enforce in his own name. * * * When the trustee is pursued for a debt he must be an actual debtor. * * * The debt for which the trustee is pursued must be a debt which the defendant could pursue at law.”

The statute of Illinois provides that garnishee process may be served upon all persons “ who are in anywise indebted to the defendant,” and the person thus served shall “ answer upon oath what amount he or she is indebted to the defendant in the attachment.” In May v. Baker, 15 Ill. 90, the Court said: “We think that a legal indebtedness is here meant; such an indebtedness as could be enforced in a Court of law, in an action brought by the defendant in the attachment against the garnishee. This attachment proceeding is strictly of a legal and not of an equitable character, and being in derogation of the common law, it is dependent entirely upon the statute for its support.”

In Harrell v. Whitman, 19 Ala. 138, the Court said: “We consider it settled that the process of garnishment must be considered as a legal and not an equitable proceeding; consequently, the defendant’s rights to the fund or property sought to be condemned must be legal, as contradistinguished from equitable.”

The force and effect of the one hundred and twenty-seventh section of our Practice Act is to place the plaintiff in the attachment, in respect to the garnishee, in the place of the defendant in the attachment only so far as the legal rights of the latter are concerned. If, at the time the attachment was served upon the garnishee, the defendant in the attachment could have maintained against him, under the practice at common law, an action of debt or indebitatus assumpsit, then the liability of the garnishee is transferred from the defendant to the plaintiff in the attachment, and not otherwise.

In view of the fact that under our system of practice law and equity jurisdictions are blended, it is claimed, on the part of the respondents, that the mere equitable rights of the defendant may be reached by this process, and a suggestion that such may be the case thrown out by Drake in his work on attachment (Sec. 457) is cited in support of the doctrine. Whatever weight there might be in the suggestion, if our attachment laws were administered only by our District Courts, there certainly can be no weight attached to it, in view of the fact that our attachment laws are made applicable to Justices’ Courts. If our District Courts can pursue the equitable rights or claims of the defendant, and subject them to the satisfaction of the plaintiff’s judgment, by parity of reason our Justices’ Courts may do the same thing. Independent of the question whether Justices’ Courts under our Constitution can exercise jurisdiction in equity, it will hardly be contended, we think, that our attachment laws should be read as conferring it, unless, which they do not, they contain expressions admitting of no other construction. If we admit that the equitable rights of the defendant can be reached in that way, we must go to the length of holding that our Justices’ Courts can take cognizance of them, and must, if called upon, ascertain and condemn them to the use of the plaintiff, however difficult the undertaking may be, or however inadequate the powers of those Courts, or however incompetent their presiding officers. To such a length we are not prepared to go, until required to do so in language which will admit of no other interpretation.

That Kincaid could not have maintained an action at law against the defendant, at the time the attachment was served upon the latter, is very clear. There was no privity of contract between them. The defendant had never undertaken or promised, expressly or impliedly, to pay the money to Kincaid; the relation of debtor and creditor did not, therefore, exist between them. Kincaid was in no sense the assignee of the contract between Davis and the defendant. Davis did not assign his contract to Kincaid. He merely contracted with him to perform certain work, and assigned to him a portion of the money, thereafter to become due to him from the defendant, in the event he built the synagogue, or caused it to be built, according to his contract. The thing assigned was the sum of thirty-three thousand and two hundred and seventy-five dollars, parcel of the seventy-three thousand and six hundred dollars, thereafter to become due and payable to Davis, upon a contingency. The subject of the assignment was not in esse, and might never be. Upon such an assignment no action at law can be maintained. To make an assignment valid at law the thing assigned must have an actual existence at the date of the assignment. The right or claim acquired by Kincaid, if any, by virtue of the assignment against the defendant, was an equity only—a lien upon the fund thereafter to be created, which could be enforced only by a Court of equity. (2 Story’s Eq. Jur., Sec. 1,040; Field v. The Mayor of New York, 2 Seld. 179.) Whether he acquired an equity or not is not material to the present purpose, and we do not desire to be understood as implying that he did. Upon that question we express no opinion. All we mean to say is that if he acquired any right by the assignment it was a.mere equity, and therefore beyond the reach of the process in question.

The certificate of the architect created no debt in favor of Kincaid. Had it been indorsed by Davis and accepted by the defendant, it would have had that effect, doubtless, but not otherwise. It might then have amounted to an accepted draft or order upon which an action at law could have been maintained by Kincaid; but such was not the case.

Judgment reversed, and judgment for the defendant ordered.