Sweeney v. Schlessinger , 1896 Mont. LEXIS 277 ( 1896 )

De Witt, J.

The motion to open the default of Welch was upon the ground of alleged excusable neglect. The motion was heard upon the affidavits of the respective counsel for Welch and the plaintiff. The respondent now contends that, by reason of some question of practice, the order denying the motion to open the default is not properly before us. But, without passing upon that question, we are satisfied to say that we cannot find any abuse of discretion in the order of the district court which would justify us in reversing it.

The other question is whether judgment should have been rendered upon the pleadings. That is all there is now before us. Appellant’s counsel earnestly argue that Welch represents some minor heirs, as guardian, who are the owners of the funds in question, and that such minor heirs are by this judgment deprived of their property. Welch was sued as administrator, and no allegations as to his being guardian of minor heirs appear anywhere in the pleadings. No application to intervene was made. Such allegations appear only by the answer which Welch tendered upon his motion to open the default. The action of the district court in refusing to open this default, we are of opinion, as above noted, was not an abuse of discretion. Therefore the answer tendered by Welch never appeared in the case. Looking simply at the pleadings as they stand, we think that the judgment upon them was proper. Section 356 Code Civil Procedure, 1887, provides : ‘ ‘If it appear that a person or corporation alleged to have property of the judgment debtor, or indebted to him, claims an interest in the property adverse to him, or denies the debt, the court or judge may authorize, by an order made to that effect, the judgment creditor to institute an action against such person or corporation, for the recovery of such interest or debt. ’ ’

The complaint in this action shows that a person and a corporation, to-wit, Edgerton and the bank, were alleged to have property of the judgment debtor, Welch, and that they refused to pay said money into court, or have it applied upon, the judgment. The complaint shows the rendition of the original judgment, the issuance of the execution, the levy by garnishment upon the bank and Edgerton, and the refusals of the garnishees to apply the funds. The complaint asked that these funds be applied to the judgment in the original case. The judgment in this case was in accordance with the demand in the complaint. What defense do we find set up against this complaint ? Schlessinger and Welch made none. When the answer of the bank and Edgerton is analyzed, it makes no defense. The answer is introduced by an allegation that the defendants are not indebted to Welch, and have not in their possession any money belonging to him; but it goes on to say that “the facts are as follows,” and what follows is a detailed statement as to how the garnishees are not indebted. It is that statement which we must analyze. Therein we find Edgerton and the bank saying that Edgerton negotiated with Welch for the purchase of certain real estate, but whether Welch was acting for himself, or in a representative capacity, the defendants do not know. The answer admits that Edger-ton paid Welch §1,200, and that the money is now in the defendant bank. The garnishees say that this money belongs to the former owners of the real estate, but that the garnishees do not know who the owners were. Reduced to a simple statement, the answer is no more than this: “We, the defendants and garnishees, have §1,200 which belongs to Welch, either personally or as a representative, and we have no knowledge which.” But the complaint positively avers that the money belongs to Welch individually.

We are of opinion that the answer does not raise any issue, and that the judgment on the pleadings was therefore correct., —(Dawson v. Maria, (Or.) 16 Pac. 413; Wade on Attachment, § 377; Drake on Attachment, § 633, — provided, however, that the' complaint sets up a cause of action. And here we reach the other point suggested by the appellants, to-wit, that the complaint itself is insufficient, in that it does not. allege that the district court ordered this action to be commenced. (Code Civ. Proc. 1887, § 356.)

The answer does not plead that the order for the commencement of the action was not made, but appellants contend that the complaint should state that the order was made. In other words, is the order for the commencement of the action a part of the cause of action ? The present action is auxiliary to the main action in which judgment was obtained against "Welch. (Waples on Attachment, § 546; Strong v. Hollon, 39 Mich. 411; Claflin v. McDermott, 12 Fed. 375; Stove Co. v. Shedd, 82 Iowa 540, 48 N. W. 933; Henry & Coatsworth Co. v. McCurdy, 36 Neb. 863, 55 N. W. 261; Farrington v. Sexton, 43 Mich. 454, 5 N. W. 654.)

A case very much in point is McKernan v. Robinson, 84 N. Y. 105. It was provided by the revised statutes of New York that, after a bill filed to foreclose a mortgage, no proceeding whatever should be had at law to recover the debt secured by the mortgage, unless authorized by the court. The court in that case held that the action, in the absence of such authority, could not be maintained, but the court did not hold that the leave to sue was a part of the cause of action. The court said that the statute was passed to prevent vexatious and oppressive litigation, and that application for leave to sue may be refused, within the reasonable discretion of the court, but the court said: ‘‘Where leave to sue in such a case is given, the cause of action is the contract or obligation of the party. The permission of the court simply removes an obstruction against the enforcement by suit. If the action has been commenced without previous authority, the fact may be pleaded, and the plea would be in the nature of a plea in abatement to the action. If the plaintiff is defeated upon this ground, he may afterwards apply to the court for leave to sue, and, if granted, he may commence a new action for the same cause. If the plaintiff has commenced his action without leave, there would seem to be no valid reason why the court, instead of putting the plaintiff to the necessity of discontinuing, may not, in a proper case, manifest its consent to the prosecution of the action by a retroactive order, to take effect as of a time anterior to its commencement. The defendant is thereby deprived of no substantial defense. ’ ’

We are of opinion that the New York case states the principle correctly, ■ and that the permission of the court to sue, or, in the case at bar, the order made to bring the action, is simply a provision to keep certain actions within the control of the court, and that, therefore, the permission or the order is not a part of the cause of action.

We are therefore of opinion that the complaint set out a cause of action, and, having determined that the answer set up no defense, the judgment on the pleadings will be therefore affirmed.

Affirmed.

Pemberton, C. J., concurs. Hunt, J., disqualified.