Jones v. Langhorne , 19 Colo. 206 ( 1893 )

Hayt, C. J.

As a general rule, a garnishee is only liable where the defendant or judgment debtor might have maintained an action against him. There is an exception to this rule in cases of a fraudulent transfer of property to the garnishee, but the principle upon which the exception is based has no application in this case. It follows that, in order to enable plaintiff in error to maintain this proceeding against Langhorne, the defendant in error, it must appear that the judgment debtor, the Bank of Leadville, could have maintained the action against Langhorne, the garnishee. Drake, in his work on Attachments, § 462, says: “ It is an invariable rule, that under no circumstances shall a garnishee, by the operation of the proceedings against him, be placed in any worse condition than he would be in, if the defendant’s claim against him were enforced by the defendant himself.” This principle has been announced in a number of cases in this state. Sauer v. The Town of Nevadaville, 14 Colo. 54; Sickman v. Abernathy, 14 Colo. 174; Union Pacific Railroad Co. v. Gibson, 15 Colo. 299; Marks v. Anderson, 1 Colo. App. 1. Could the judgment debtor, the Bank of Leadville, have maintained an action against the garnishee, Langhorne, for the claim here sought to be enforced ?

The garnishment proceeding is directed against Langhorne individually, to secure a claim against the Bank of Pitkin County, a partnership composed of the garnishee and three others. The attempt to charge Langhorne grows out of his supposed connection with this copartnership. Neither by pleading nor proof has it been attempted to establish any liability whatsoever against Langhorne, except as such liability is made dependent upon the alleged indebtedness of the Bank of Pitkin County to the Bank of Leadville. It is well settled in this jurisdiction that in an action to enforce a partnership liability all the partners must be joined as defendants. This familiar rule of the common law has been held to be in force in this state in a number of cases. See Bank v. Ford, 7 Colo. 314; Craig v. Smith, 10 Colo. 220; Dessauer et al. v. Koppin, 3 Colo. App. 115; 32 Pac. Rep. 182; see also, Bowen v. Crow, 16 Neb. 556.

It is no answer to say that when several are joined as defendants and some are shown liable, while others are not, judgment may be rendered against part only. In this case the indebtedness alleged constitutes but a single indivisible claim against the Bank of Pitkin County. The allegations and proof ■tend to establish a claim against the copartnership, rather than against a part only of those composing the firm. To allow Jones, the plaintiff, to maintain this action against the garnishee, Langhorne, individually, would result in placing the garnishee in a worse condition than if the defendant was attempting to enforce the claim against the Bank of Pitkin County. This cannot be permitted. Drake, Attachm. (4th ed.) 561; Hoskins et al. v. Johnson et al., 24 Ga. 625; Atkins v. Prescott, 10 N. H. 120; Ellicott v. Smith, 2 Cranch, C. C. 543; Wellover v. Soule, 8 Mich. 481.

It is contended, however, that this question should have been raised by plea in the court below. Undoubtedly, as a general rule, where a partner is sued individually for a firm debt, he should plead the nonjoinder in order that he may avail himself of this defense, but this general rule can have no application to garnishment proceedings under our civil code. This proceeding is purely a creature of statute. The statute provides that, “New matter in the affidavit replying to the answer of the garnishee, shall be taken as denied or avoided without any rejoinder being filed, and the matter thus at issue, without further pleadings shall be tried in the same manner as other issues of like nature. * * * ” Section 128, Code 1887.

The garnishee in this case in the first instance answered the process served upon him by a simple denial of indebtedness. Afterwards by an amendment to this answer, the defense of the statute of limitations was set up. To this answer a reply was interposed by the plaintiff in error. In this pleading the copartnership of Langhorne (garnishee herein), E. L. Campbell, George R. Fisher and J. B. Bissell, under the firm name and style of the Bank of Pitkin County, and the joint indebtedness to the Bank of Leadville, was first alleged. Under the statute the garnishee had no opportunity to plead to this reply, but without further pleading he could avail himself of any defense he might have to the new matter set up in the affidavit. Section 128, supra.

The district court, upon the proofs decided that Lang-" home was not liable as garnishee, and rendered judgment accordingly. The question before us has reference solely to that judgment. As the conclusion reached upon the failure to join with Langhorne his copartners, must necessarily result in an affirmance of the judgment, our opinion upon the other points raised is not material.

The judgment of the district court should be affirmed.