Murne v. Schwabacher Bros. & Co.

Opinion by

G-reene, Chief Justice.

This -was a supplementary proceeding based upon affidavit, under Chapter XXXV. of the Code. Plaintiffs in execution had the defend mt Murne arrested, agreeably to Section 381, and brought before the Judge. Witnesses were thereupon examined, and a trial had without a jury. As a result, there was a finding that defendant had certain property in his hands, which he was unju.-tly refusing to apply toward the satisfaction of the judgment. Upon this finding, the Judge ordered defendant to make such application, and in default thereof to be committed as for a contempt. From this order defendant seeks relief in this Court.

First, it is said that the judgment upon which the execution issued was void, because not rendered in term time. It appears to have been rendered by the Judge, sitting at his chambers in Seattle, while the cause was pending at Port Townsend. As the case was a default done, and came to judgment in February, 1876, while the Statute of 1875, authorizing the District Judges, at chambers in vacation, to hear and determine all matters whatever not requiring the intervention of a jury, including a final judgment against a party in default, was in force, we think the judgment should be deemed good. The obvious intent of the legislature in that statute, though not in terms so stated, was to have all the Courts in each district open at all times for the transaction of certain specified business ; and to provide that for the uniform speeding of causes throughout the district, such business might be passed upon by the Judge, wherever in the district he might happen to be.

It is further objected that, as more than five yeaVs have elapsed since the rendition of this judgment, it is now dormant, and no proceedings looking to its satisfaction will lie until it has been revived. We think this would be true, were Chapters XXIX. and XXX. of the Code to be held operative against these judgment creditors. But that cannot be. Their judgment, at the date of the adoption of the Code, had been in being more than five years, and within those five years they had issued execution upon it. Under the then existing law, they thus had still a live judgment, and a right to issue execution and institute a supplementary proceeding on it at any time. That right was a valuable and vested right. Power to exercise it might, by a new statute, have been limited to expire at the end of a reasonable time, but it could not have been summarily taken away without limitation.

Again, it is objected that the affidavit was erroneously allowed to be amended. It described the judgment, which was in fact against two defendants, as if it were against one. An amendment was permitted, making the description conform to the fact. This might not have been proper, had the supplementary proceeding been independent of the original action. But it was a proceeding in, or in continuation of, that action, drawing readily thence data whereby it could be amended, and certainly amendable within the very liberal rules prescribed by Sections 109 and 118 of our Code.

A fourth objection is, that plaintiff in error was, against his protest, denied a trial by jury. He contends that a jury trial was his constitutional right, under the 5th and 7th Amendments to the Constitution o£ the United States. We are clear that these constitutional amendments are part of the organic law of the Territory, hut they do not avail to give a trial by jury in an equity cause. This supplemental proceeding is of equitable jurisdiction, intended to serve the end of a creditor’s bill, and is to be heard and determined by the Judge as a chancellor, with or without the assistance of a jury, as he may desire. Such seems to be the generally adopted theory respecting proceedings of this sort. Ex parte Grace (12 Iowa, 208), though in point, is not followed by Courts outside of Iowa. Its reasoning does not convince us that we ought to follow it. If the reasoning it pursues-is to lead to the conclusion it reaches, then we do not see but that a trial by jury on an issue of fraud is, in every chancery as well as every law case, a constitutional right.

The last objection we shall notice is, that another person should have been made a party to the proceeding. On this we have had considerable difficulty. Looking at the testimony before us, we cannot help thinking that John Elwood, who is asserted by some witnesses to have an interest in the property, should, in equity and good conscience, have been called in as a party. At the same time, Chapter XXXY. does not seem to contemplate such a thing, and makes no provision for it. After much consideration, wc have come to the opinion that the case falls within Section 20 of the Code, requiring that “ when a complete determination of the controversy cannot be had without the presence of other parties, the Court shall cause them to be brought in.” By an order to show cause, or by some other reasonable notice, any party whose rights are involved can readily be brought into a proceeding of this character. A new party should be brought in whenever, in the progress of the proceeding, and before the final order, there appears reason to believe that he owns an interest in the money or other property sought to be subjected to the judgment. In so holding, we simply give full effect to the idea that this is a matter of equitable cognizance, to be heard and adjudicated as fully and with as carefid regard to the rights of all interested, as though it were an original suit.

This cause, though properly in equity, has been brought up here by writ of error. No exception has been taken in brief or argument on this score. We shall, therefore, give judgment as if it were regularly here as a case at law. Let the final order of the District Court be reversed, and the cause remanded for further proceedings, with direction to bring in such other party or parties as may be right and equitable.