Hawthorne Sash & Door Co. v. City of New London , 99 Conn. 672 ( 1923 )

Plaintiff claims that the prior garnishment by Klitgaard was wholly ineffectual, because the contract out of which the indebtedness in question arose was made with Thomas C. West as an individual, and that Klitgaard, who sued "The Thomas C. West Company, Incorporated," brought his action against the wrong defendant and against a nonexistent corporation.

We think these claims are not supported by the facts found.

The contract for the erection of the fire house was signed, "Thomas C. West Co., by Thomas C. West, contractor," and the finding, as corrected, is that at the date of the service of the plaintiff's writ the city was indebted to Thomas C. West, by virtue of a contract entered into between the city and Thomas C. West "doing business as the Thomas C. West Company." It is also found that a certificate of incorporation of the Thomas C. West Company was approved by the Secretary of State on August 28th, 1919. There is no finding that a certificate of organization of the Thomas C. West Company was ever filed and approved, and no finding that there was ever any meeting of stockholders or election of directors and officers of the corporation.

The result of these findings is that prior to the service of the Klitgaard garnishment, Thomas C. West was carrying on a contracting business under the name of the Thomas C. West Company, a corporation legally existent but without lawful capacity to carry on business, and apparently without any officers or agents through whom it could or did attempt to carry on business as a corporation. In respect of matters growing out of his contracting business, Thomas C. West might at that time have been sued either in his own name or under his trade name. Klitgaard sued the Thomas C. West Company and described it as a corporation, but this did not invalidate the writ, because there was such a corporation in existence having capacity to sue and be sued. Chieppo v. Chieppo, 88 Conn. 233, 90 A. 940;Scholfield Gear Pulley Co. v. Scholfield, 71 Conn. 1,40 A. 1046. As to the claim that the garnishment was ineffectual because the company was sued as a corporation and not as another name for Thomas C. West, it is to be observed that the service of the writ of garnishment did not purport to operate as a physical attachment of any property belonging to the defendant described in the writ, but as notice to the garnishee to retain in its hands any effects belonging to the defendant or any indebtedness due the defendant. Harris v.Balk, 198 U.S. 215, 223, 25 Sup. Ct. 625; General Statutes, § 5915.

There was but one Thomas C. West Company with whom the city had any contractual relation, and we are of opinion that the trial court was right in holding that the city was sufficiently notified by the Klitgaard garnishment that the concern named therein was the same Thomas C. West Company whose name was signed to its contract. Whether it was correctly described, and, if not, whether the error was curable by amendment, were questions affecting the validity of the Klitgaard garnishment which were properly determinable in this proceeding. § 5973. We see no reason why the error may not be cured by amendment, in the discretion of the Superior Court, so that the Klitgaard writ and complaint will conform to the proofs. Nobody has been deceived, and there is no equitable reason why the garnishment should be dissolved by the allowance of the amendment. The Superior Court did not err in holding that the Klitgaard garnishment was a valid garnishment prior in date to that of the plaintiff.

Plaintiff claims that in any event the court erred in not rendering judgment in its favor for $389.98, being the balance of indebtedness admittedly due over and above the Klitgaard claim of $500. It does not offer to accept this amount in full satisfaction of its garnishment, and a judgment in partial satisfaction might subject the garnishee to two judgments in respect of the same garnishment. Irrespective of the stipulation made by the parties, we think this would be wrong in principle and would violate the intent of § 5973. The present action is premature because the amount recoverable by the plaintiff cannot now be determined.

The other assignments of error require no discussion.

There is no error.

In this opinion the other judges concurred.