Smith v. Carroll , 12 L.R.A. 301 ( 1891 )

This is assumpsit to recover four hundred dollars in money. The action was brought in this court at the October Term, A.D. 1888. February 17, A.D. 1890, one William H. Clapp brought an action of debt on judgment for $122.74 debt, and $5.65 costs against the plaintiff in the Court of Common Pleas, the writ wherein was served by garnishment on the defendants for the purpose of attaching in their hands the money sued for in the case at bar. Said action was entered in the Court of Common Pleas at the June Term, A.D. 1890, and appealed by the defendants to this court at its present term, so that both cases are now pending in this court. The defendants have set forth these facts on the record by plea puis darrein, and the plaintiff has demurred.

The plaintiff contends that after the commencement of his action the money sued for was in the custody of the law and no longer subject to attachment, and furthermore that, even if it continued to be subject to attachment, the defendants' said plea is fatally defective in form and substance and should be overruled. We will first consider the question first presented, namely, whether such an attachment can be supported.

According to what seems to be the prevailing current of American decision, a debt is not necessarily put beyond the reach of garnishment by being put in suit, where both suits are in the same jurisdiction. Drake on Attachment, §§ 618-621; McConnell on Trustee Process, §§ 318-320. The law, as supported by American authority, is well stated in Foster v. Dudley, 30 N.H. 463-465. In that case the court say: "If the trustee suit be commenced while the debtor trustee has yet an opportunity to ask for delay, and to plead a recovery against him if one should be had, he may be charged as trustee, if no other objection appears." See, also, McCarty v. Emlen, 2 Yeates, Pa. 190;Crabb v. Jones, 2 Miles, Pa. 130; Sweeny v. Allen, 1 Pa. St. 380; Thayer v. Pratt, 47 N.H. 470; Thrasher v.Buckingham, 40 Miss. 67; Lieber v. St. Louis A. M.Association, 36 Mo. 382; Smith v. Barker, 10 Me. 458;Thorndike v. De Wolf, 6 Pick. 120; Whipple v. Robbins,97 Mass. 107. There are cases that hold, or appear to hold, that, for the garnishment to be effectual, the two suits must be in the same court, as well as in the same jurisdiction. Hitt v.Lacy, 3 Ala. 104; McDonald v. Carney, 8 Kansas, 20;Bingham v. Smith, 5 Ala. 651. Under this rule the garnishment here is maintainable.

The next question is, as to the plea puis darrein. The purpose of the plea is to protect the defendant from liability to double payment. The Supreme Court of Vermont, in Trombly Sax v. Clark, 13 Vt. 118, 123, has said: "If a suit is pending in the name of the principal debtor against the trustee as defendant, and the latter is summoned as trustee, he may plead this temporary bar, and stay the proceedings until the suit of the creditor against him, as trustee, is determined." The same view has been taken by other courts. Crawford v. Slade, 9 Ala. 887;McDonald v. Carney, 8 Kansas, 20. The plea in this view has the effect simply of a motion for continuance, or for a temporary stay of proceedings; and when the two suits are depending in the same court, the record in each being thus readily accessible to inspection, we see no reason why the result, intended to be accomplished by the plea, cannot be as well, if not better, accomplished by motion. It seems to be the practice in some States to resort to a motion rather than a plea. Winthrop v.Carlton, 8 Mass. 456; and see Spicer v. Spicer, 23 Vt. 678. And in this view it seems to us that the matter, whether interposed by plea or motion, need not be very strictly regarded, if only it be made to appear that justice requires a stay. We are of opinion that the plea here is sufficient for the purposes intended. It is objected that the suit, though brought in the name of the plaintiff, is prosecuted, as appears by the declaration, for Jacob Mathewson, as his assignee, and that the plea does not allege any invalidity in the assignment. We think, however, that the place to try whether the assignment is valid or not is in the garnishment suit, and that the allegation is therefore unnecessary.

Demurrer overruled.