Trunkey v. Crosby

Gtlfillan, O. J.

In the action against Yaughan, proceedings in garnishment were commenced against Crosby. On a disclosure, the latter denied any indebtedness to or the possession or control of any property, money, or effects of the defendant. Thereupon the plaintiffs, on notice to the defendant and the garnishee defendant, applied for and obtained leave to file and serve, and did file and serve, a supplemental complaint. The notice of application for leave, and also the supplemental complaint, were not served personally on the defendant, but instead were served on Crosby, the garnishee, who was also attorney for the defendant in the action, and who, in writing, admitted service as garnishee and as attorney for the defendant.

. .It is now claimed that the service on defendant was not good; that such service cannot be made on a defendant’s attorney, on the ground that, as claimed, the, notice is in the nature of original process to bring the party into court. But it is not process, nor does it bring the party into court. The proceeding is already pending by service of the garnishee summons; and the application for leave to serve and the service of the supplemental complaint are only further continuations of such pending proceeding, and the attorney who has appeared for the defendant or the garnishee is the proper person upon whom to serve the notice.

The case against the garnishee is in a nutshell: One Morgan executed a note for $500, payable to the order of Yaughan, and he indorsed it to the garnishee, who, when the garnishee summons was served, had it in his possession and under his control. As found by the jury, — and the evidence sustains the finding, — it was indorsed to the garnishee for collection and safe-keeping. He claimed also and testified that it was indorsed to secure fees due from Yaughan to him for services, and that he had received $100 upon it, which he had applied upon such fees, and the jury find that to be the value of the services. He also claims that it was indorsed to him for the purpose *467 of his appropriating the remainder, after paying what was due himself, to settling with the creditors of Vaughan; and that he had made agreements with the creditors by which he had promised' to pay them out of the proceeds of the note, when collected, 40 per cent, of their olaims, which they agreed to receive in full. The jury found that he had not made such agreements. The garnishee claims this to be contrary to the uncontradicted evidence. We think the jury might well understand the garnishee as testifying (and it his testimony on the point that is claimed to be uncontradicted) that he was not to pay any creditor unless he could settle with all of them; that the agreement with each was to depend on his being able to bring all to the' ■same terms. He testified that he had made agreements with all, and he is contradicted as to one of them. If the jury believed, as they might do, the contradicting testimony, then the garnishee’s proof on the point failed, and the finding was correct.

The court instructed the jury, in effect, that a mere promise by the ■creditors to receive in full for their claims the amounts offered by Crosby, would not be a binding contract. There was in the evidence no pretence of a composition deed, nor of any consideration for such a promise by the creditors, beyond the promise of Crosby, as agent for Vaughan, to pay from the debtor’s money 40 per cent, on the amounts due them. As applied to the evidence the instruction was correct. A mere agreement by a creditor to accept less than is due him, in discharge of the debt, is without consideration and consequently not binding. As it did not bind the creditors, it did not bind the agent, nor the money under his control.

The case is different from one where a debtor deposits money with his agent to be paid unconditionally to a creditor, in which case the ratification by the creditor and his acceptance of the agent as his needs no further consideration to support it. Such was the case of Simonton v. First Nat. Bank, 24 Minn. 216 .

There was no error in the other instructions, nor in the refusal of the garnishee’s request. There can be no doubt that where the garnishee has a lien on the defendant’s property in his hands, the fact that the amount of it is not liquidated will not defeat garnishment.

It appears that after the garnishment was commenced, the garnishee *468 brought suit on the note in his own name in the district court, recovered a verdict on it, and filed it in that court. Wherefore he claims that it is in custodia legis, and beyond his control, and cannot bo reached by the garnishment. If he has placed it out of his control, he did it voluntarily, and without leave of the court in which the garnishment was pending; and if any inconvenience were to arise from that act, he, and not the plaintiff, must be the one to suffer. Had it been necessary to sue the note, the municipal court might have granted leave to do so, with such conditions and restrictions as would protect the rights of plaintiffs. As he has seen fit to act without regard to the rights of the court and of the plaintiffs, he cannot take advantage of his act.

The questions asked the garnishee by plaintiff, whose witness he was, as to former statements made by him, were in the discretion of the court, and it seems to have been properly exercised.

Order and judgment affirmed.