Citation Numbers: 41 Kan. 542
Judges: Clogston
Filed Date: 1/15/1889
Status: Precedential
Modified Date: 9/8/2022
Opinion by
Two questions are raised by the plaintiffs in error: First, was Bragunier, the party served with garnishment, such an agent, and did he have such possession of the property of Weaver & Co. as would make him liable in garnishment proceedings? Second, are mortgagees of personal property, while in the possession of the property, liable in garnishment? As to the first of these questions, it is one of some doubt, and each case of this character must be determined upon the facts surrounding it, and no rule can be established that will apply to all of this class of cases; for it has been held, and doubtless properly, that some classes of agents are not liable; such, for instance, as hotel-keepers while in possession of the baggage of their guests, and persons who hire livery teams, common carriers, persons in charge of property under conditional sales, where goods are turned over for examination or trial; all those classes of possession have been held not sufficient to create a liability to answer in garnishment. (Waples, Att. and Garn., p. 194.) But we think few cases can be found where this rule has been applied to persons who are in charge of stocks of goods or stores as general managers or agents having the care, control and management of such business. In this case, while Bragunier in one sense was the agent of Kellogg & Sedgwick, yet Kellogg & Sedgwick were simply the agents of the original creditors; they were representing non-resident creditors of Weaver & Co.,
The second claim we think is not well taken, and the authorities cited by counsel do not bear out their theory. In Dieter v. Smith, 70 Ill. 168, cited by counsel, the court held that property in the hands of a mortgagee was not subject to garnishment, but it was upon a very different state of facts from that presented in this case. In that case the mortgagee had taken possession of the property but a few days before service, and had not made a sale of the mortgaged property. The court properly held in that case that the mortgagee was not subject to garnishment, because it could not be definitely told that the property would be more than enough to pay the mortgage debt, or that it might not be lost or destroyed and nothing be realized from it. But the court in closing that case said: “If he had the property and had an excess in his hands over his debt, that would have presented a different case; or if he had refused'to sell according to the terms of the mortgage and converted the property to his own use, that would have presented a different question.” We think the
These questions settle this case, and we are satisfied from the answers of the garnishee that at the time of service upon him he had such control of the property as made him liable; and as this property was turned over in violation of the process of the court, the defendants were liable to the plaintiffs below for the amount of their judgment and the costs.
It is therefore x*ecommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.