United States Trust Co. v. Beeber

Opinion by

William W. Porter, J.,

Tbe judgment was entered for tbe defendants by the court below. The purpose of the case stated is manifestly to secure a judicial answer to the question whether, in the case of-a mortgage delivered by an insurance company to the insurance commissioner, under the act of assembly of April 6, 1868, the interest accruing on the mortgage can be attached in the hands of the mortgagor by a judgment creditor of the insurance company. From the case stated it appears that the United States Trust Company of Baltimore (here plaintiff) obtained a judgment against the Guarantors’ Finance Company and issued an attachment sur judgment against one Bruehl. Bruehl was a mortgagor whose mortgage was held by the insurance company, but deposited with the insurance commissioner. The finance company became insolvent and receivers were appointed. The same gentlemen were appointed receivers of an insurance company from which the Guarantors’ Finance Company had derived both its assets (including the mortgages here involved) and its liabilities. It will be observed that by the attachment the mortgagor, Bruehl, was required as garnishee, to answer to tbe plaintiff company for any moneys in his hands belonging to, or due by him to, the Guarantors’ Finance Company. Bruehl as garnishee was the party most interested in ascertaining to whom the interest on his mortgage should be paid. He was not a party to the ease stated. The parties thereto are the United States Trust Company, and the receivers of the Guarantors’ Finance Company. The former had already secured a judgment against the Finance Company before issuing the attachment. By the terms of the case stated (and from this document alone authority is derived) the court may enter judgment “ for the plaintiff ” for the principal sum with interest, or “ if the court shall be of the opinion that the attachment issued by plaintiff secured a lien upon all interest due at the time of the laying of said attachment and thereafter to become due,” judgment may be entered for “ the plaintiff ” or if the court shall be of opinion that no lien was acquired by said attachment, then judgment may be entered “for the defendant.”

Should we affirm the court below and hold that the attachment seized nothing, the garnishee would not be relieved from the writ of attachment since he is not a party to the case stated. On the other hand, were we to hold that the attachment did bind Bruehl to the extent of the accrued interest, what purpose is subserved by the entry of a judgment thereon not against him as garnishee (since he is not party), but against the receivers of the original defendant company, against which a judgment had been obtained for the whole of the debt, and which judgment was itself the foundation of the writ of attachment? It appears from this that the concrete question involved affects the rights of Bruehl and that the parties before us cannot agree to bind him by any judgment we can enter. If the question, however, be abstract, and the object of the trust company and the receivers of the insurance company be simply to draw from the court an expression of opinion on the case as presented, no complaint can be made of the refusal on the part of this court, to permit a judgment to be entered. We regard the case stated as insufficient in parties to warrant the entry of a judgment upon the question sought to be raised. We therefore reverse the action of the lower court, strike off the case stated, and remit the record with a procedendo.