Curtis v. Hutchinson , 126 Minn. 264 ( 1914 )

Philip E. Brown, J.

Appeal by the garnishees from a judgment rendered against them in favor of plaintiff.

The questions raised concern law only, the undisputed facts being as follows: On March 28, 1913, the district court of Hennepin county duly made an order allowing defendant Hutchinson, .an attorney at law, a specified sum, pursuant to G. S. 1913, § 8513, for defending an indigent defendant charged with felony. On 'the same day plaintiff, who had theretofore commenced an action against defendant in the municipal court of Minneapolis, caused a garnishee summons to be duly served on the county auditor and treasurer, and when, later in the day, the order was presented to them they refused to issue a warrant or pay. On April 2, following, an alternative writ of mandamus issued, on defendant’s relation, out of the samo district court, to the county auditor, directing issuance of a warrant for the amount of the order, or cause shown to the contrary. The auditor answered, admitting his refusal to issue a warrant and setting up the garnishment proceedings in justification thereof, and on the next day, after hearing duly had, issuance of a peremptory writ as prayed was adjudged and judgment entered therefor; whereupon, on the same day, the auditor complied therewith by issuing his warrant to defendant for the amount of the order and making due return. Thereafter the garnishees disclosed the facts stated, and the municipal court, after denying their motion to dismiss, ordered judgment against them in plaintiff’s favor. Plaintiff was not made a party to the mandamus proceedings and did not appear therein.

1. The garnishees’ contention that defendant Hutchinson, because of his appointment to defend one accused of crime, was a state and public officer, whose fees for the services mentioned were, therefore, exempt from garnishment, is overruled. As an attorney he was merely an officer of the court, and the appointment in question in no wise enlarged this status.

2. The garnishees maintain that the order for compensation was, in effect, a judgment, and also that it appears from the disclosure that the money involved was in custodia legis and hence not garnish-able. We hold, however, that the order merely created a chose in action; upon which defendant, his assigns, or representatives, became entitled, if no preventing circumstances intervened, to receive its proceeds from the county, and that the latter were not in custodia legis. The amount of the order was a mere county debt and as such subject to garnishment, the old rule exempting such obligations from garnishee process because of inconvenience of compelling public officers to answer thereto having been discarded by the decision in Mitchell v. Miller, 95 Minn. 62, 103 N. W. 716.

3. Nor can we sustain the point that the municipal court could not override the judgment in the mandamus proceedings in the district court. The former obtained jurisdiction before the latter and, under a familiar principle, retained it, with the right to proceed to final determination without interference by the latter. Jacobs v. Fouse, 23 Minn. 51. Furthermore, mandamus, under our procedure, is in all respects assimilated to an ordinary civil action, including the right to bring in additional parties. State v. County of Chicago, 115 Minn. 6, 131 N. W. 792, Ann. Cas. 1912D, 669; State v. Minneapolis & St. Louis Ry. Co. 39 Minn. 219, 39 N. W. 153. And no attempt having been made to make plaintiff a party to the mandamus proceedings here involved, no greater effect can be accorded the determination therein, so far as he is concerned, than, any other judgment as against one neither party nor privy. Plaintiff was not bound thereby, and the municipal court was right in ignoring it and ordering judgment for him. The mandamus must be regarded as within the rule of First National Bank of Culbertson v. State Bank of Climax, 125 Minn. 262, 146 N. W. 1093, where, because of an undetermined garnishment, plaintiff therein was denied a money recovery to which he was otherwise entitled.

Judgment affirmed.