American Bank v. Snow , 9 R.I. 11 ( 1868 )

In this case a motion has been made for the discharge of the garnishee, and one ground of the motion is, that the only personal estate, if any, of the defendant which was in the hands of the garnishee, at the time of the service of the writ, was a debt on which the defendant had recovered judgment against the garnishee in the U.S. Circuit Court for the District of Maine, and on which execution had issued, and been partly satisfied.

In the case of Franklin v. Ward Goodale et al., 3 Mason, 136, decided in the U.S. Circuit Court in Rhode Island, at its November Term, 1822, it was held, (the opinion being delivered by Mr. Justice Story) that a judgment debtor is not liable to be attached as a garnishee under the foreign attachment act of Rhode Island. The act upon which this decision was made, was that contained in the Digest of 1798, which, so far as we can discover, does not differ favorably for the plaintiff in any particular affecting the question before us, from the Statute which is now in force.

Mr. Justice Story, in his opinion, follows the precedent of certain cases cited from Massachusetts, remarking: "My judgment proceeds, not upon these cases alone, but upon the principle which they contain, which seemed to me founded in law and general justice."

The ground of the Massachusetts decisions, is, that after the debt has been reduced to judgment, the garnishee is exposed to execution without opportunity to avail himself of the statutory provision in his favor, which appears to have been much more explicit in Massachusetts than in Rhode Island, by way of defence. And in Sharp v. Clark, 2 Mass., 91, 96, in reply to a suggestion that the trustee might resort for relief to anaudita querela against his principal, Chief Justice Parsons, in language not very inapplicable to a bill in equity, remarks: "This remedy, always expensive, would be often fruitless; and to give this construction to the statute would expose it to a reproach it does not merit."

The rule laid down in the Massachusetts decisions, and adopted in Franklin v. Ward Goodale et al. has been followed in Arkansas and New Jersey, but in several other states it has not been approved. See Drake on Attachments, 3d Ed. § 622et seq.

We are not advised that the construction given to our statute by Justice Story, more than forty years ago, has ever been reversed by the Supreme Court of the State. Since it was given the statutes of the State have been twice revised, and it is fair to presume that if the construction had been disapproved, either as regards the meaning or the purpose and policy of the statute, there would have appeared, in the statutes as revised, some modification, which we do not find, to denote such disapprobation. We therefore think, that we ought to stand by that construction, so long as the statute continues unchanged in any particular affecting it.

If a person who has been served as garnishee, is not chargeable, as such, in respect of a judgment recovered against him in one of the courts of this State, because he may not be able to protect himself against the execution thereon, still less, ordinarily, ought he to be chargeable in respect of a judgment recovered against him in the United States Circuit Court in another jurisdiction. Drake on Attachments, (3d Ed.) § 625. In this case, however, it is contended that in the jurisdiction where the judgment is recovered, the garnishee has no property which can be taken on execution, and that elsewhere the judgment can only be enforced by suit, to which the garnishee can set up this proceeding in defence, and that therefore the case is not within the reason of the rule adopted by Justice Story. But if it be true that the garnishee has now no property in Maine which is liable to seizure on execution, it does not follow that it will continue so; nor do we think it at all certain, that the garnishee, if charged in this suit, can protect himself by reason thereof, if sued in the United States Circuit Court in this State upon the judgment recovered against him in the U.S. Circuit Court in Maine, the same having been recovered previous to the commencement of this suit. It was held by the Supreme Court of the United States in Wallace v. McConnell, 13 Peters, 136, that the defendant of a suit in a United States Court, who, pending the same, was served as garnishee in a county court in the State, was not entitled to plead the garnishment in defence or arrest of the former suit, the jurisdiction as between the two courts being determined by priority of suit. We think, under this rule, a judgment of the U.S. Circuit Court of Maine would be enforced in the U.S. Circuit Court in Rhode Island, as being of higher validity than any subsequent proceeding against the defendant in this court in foreign attachment. See also AmericanBank v. Rollins, 99 Mass. 313; Burrill v. Letson, 2 Spear, 372.

For this reason we think the garnishee is not chargeable in this suit, and we do not think it necessary to determine the other question made in his behalf.

Garnishee discharged.