Atlantic and Pacific Railroad Company v. Hopkins

1. In.Kansas, an order of a court in a proceeding in aid of execution directing a garnishee to pay to the judgment, creditor money which he owes to the judgment debtor is not a judgment, and does not determine finally the liability of the garnishee. 2. Therefore, in such a proceeding, an order of the circuit, court of the United States, sitting in that State, awarding execution against a garnishee, is erroneous.

Error to the Circuit Court of the United States for the District of Kansas. On the 30th of November, 1872, Hopkins obtained, in the ■Circuit Court of the United States for the District of Kansas, a judgment against the St. Louis, Lawrence, and Denver Railroad Company for $6,385, with interest and costs of suit. Upon this judgment two executions were issued, and returned unsatisfied. The attorney for Hopkins filed in the clerk’s office, June 19, 1878, his affidavits, setting forth that he had good reason to and did believe that the Pacific Railroad, and the Atlantic and Pacific Railroad Company, were indebted to the St. Louis, Lawrence,' and Denver Railroad Company. Garnishee summons with interrogatories attached were thereupon issued. The companies answered, denying their indebtedness; but the court, on the 4th of December, 1873,. having, upon consideration of said answers and the argument of counsel thereon, found that the sum , of $7,500 would be due from the garnishees to the defendant on the first day of Januqiy then next ensuing, passed the following order: — , “It is, therefore, now by the court here considered, ordered, and' adjudged that said garnishees, the Pacific Railroad and the Atlantic and Pacific Railroad Company aforesaid, as garnishees herein, pay into this court, ,to the clerk thereof, on the first day of January next, so much of said sum of $7,500 as it will require to pay and discharge the judgment heretofore, and on the thirtieth day of November, a.d. 1872, rendered herein in favor of said plaintiff against said defendant, that is, the sum of $6,885, with interest thereon at the rate of seven per cent per annum from the said thirtieth day of November, a.d. 1872, and the costs by said plaintiff in this action expended, ánd that execution issue therefor if they neglect to make such payment on that first day of January, a.d. 1873; and that on such payment being made herein to said clerk by said garnishees, or either of them, the said garnishees are to both stand and be discharged herefrom without costs against them or either of them; but if they fail to make such payment on said first day of January next, then such execution is to be issued and enforced against, said garnishees and their and each of their property, at their costs.” To this order and judgment said garnishees excepted, and sued out this writ of error.