Daniels & Co. v. Clark , 38 Iowa 556 ( 1874 )

Day, J.

— I. It is claimed that the petition of intervention should not have been allowed, and that the judgment of the justice should have been affirmed, upon the ground that the garnishee did not appeal.

u garnishventíon 'praetiee. We believe this view to be unsound. In this case there was no question as to the indebtedness, nor as to the amount of indebtedness, for the keeping of the cattle, The garnishee admitted it to be $295, and neither the plaintiffs nor Eeninger claimed it to be more. The whole controversy was respecting the party to whom this claim was due. The proceeding was in the nature of an action in Tern. The decision of the justice determined that the plaintiffs were entitled to the property, and this, so long as un appealed from, determined the rights of the plaintiffs, and the liability of the garnishee. But when Eeninger appealed from this judgment it became suspended. Plaintiffs could not enforce it; the garnishee could not safely discharge it. The liability which had been fixed, was now undetermined. Another adjudication became necessary in' order to settle the liability of the garnishee. It will not do to say that the garnishee was not in court, constructively, and subject to the orders which might he made. If upon Eeninger’s answer it had been determined that the garnishee was liable to Mary Eeninger, there can be no question that he would have been bound by such adjudication. If so, it must he admitted that the question as to whom the garnishee was liable, was opened up by the appeal, and became a proper subject of further inquiry. True, if nó further pleading had been filed upon appeal, the only question would have been whether the garnishee owed the debt to Wm. Eeninger or to Mary Eeninger. But inasmuch as the debt due from the garnishee had not been paid over to the plaintiffs, and the right of the plaintiffs to it was undetermined, we have no doubt of the right of the intervenórs to interpose and assert their claim to the debt. The right is directly conferred by § 3237 of the Revision, § 3016 of the Code.

This section provides that any person, other than the defendant, may, before the payment to the plaintiff of the proceeds of any attached debt, present his petition verified by oath, to the court, stating a claim to the property or money, or to an interest in or a lien on it under any other attachment or otherwise, and setting forth the facts upon which such claim is founded. Tbe court did not we think err, in - permitting the intervenors’ petition to be filed.

2___ ties-II. It is further urged that the mortgage of a debt due from a third person is not a recordable instrument, and the' record thereof did not affect the plaintiffs or the garnishee with constructive notice. We deem it unnesessary to determine this question. The debt was assignable, and the mortgage effected an assignment of it to the intervenors. This wras done long before Clark was garnished as the debtor of Beninger.

3 _._. assignment, The plaintiff occupies, as against the garnishee, the position óf the defendant, with no more rights than the defendant had, and liable to be met by any defense, which the garnishee might make against an action by the defendant. Drake on attachment, Section 452, and cases cited. At the time this garnishment was served, whatever interest Beninger had in the debt was subject to the claim or lien of the intervenors. Plaintiffs succeeded to it subject to the same lien. The garnishee was entitled to notice of the assignment before his liability became absolute to the plain- • tiffs by an adjudication, for he is not to be placed in a position to incur a double liability, unless by his own neglect. But the effect of the appeal was, as we have seen, to suspend the judgment against the garnishee. If he had then been notified of the assignment he might have appeared in the appellate court, and by supplemental answer, have presented this fact as a reason why he should not be held liable to plaintiffs. But the petition of intervention has the same effect. It enables the court to determine who is entitled to the sum owing by the garnishee, and to fully protect him from further liability. This view, we believe, determines all the questions urged by appellant. We see no error in the action of the Circuit Court.

Affirmed.