Effect of remedy by, on right to creditors' bill, see .. CREDITORS' BILL, § 3 d, e. Evasion of exemption laws by garnishment in other state, see Inadequacy of remedy by, as ground for exercise of equitable jurisdiction, see Evidence of fraud in creation of debt, see Garnishee as party to suit to enjoin proceedings, see Effect of remedy by, on right to follow trust See also WORDS AND PHRASES, 1505, 4785. I. In general. § 1. Nature and purpose of proceeding. a. Garnishment is a form of attachment whereby money or property of a debtor, in hands of third parties, may be subjected to payment of a creditor's claim. National Bank of Wilmington & B. v. Furtick, 44 L.R.A. 115, 2 Marv. (Del.) 35, 42 Atl. 479. b. The remedy by garnishment is purely statutory and not а common law right. Kirkman v. Bird, 58 L.R.A. 669, 22 Utah, 100, 61 Pac. 338. c. Garnishment is purely a statutory proceeding, and is usually invoked to reach assets of a debtor who has no property accessible to the ordinary legal writs. Clark v. Osage County, L.R.A.1917B, 1269, Okla., 161 Pac. 791. d. Garnishment is a purely statutory proceeding and cannot be pushed in its operation beyond the statutory authority under which it is resorted to. Duval County v. Charlestown Lumber & Mfg. Co. 60 L.R.A. 549, 45 Fla. 256, 33 So. 531. e. Garnishment is a special, limited, statutory proceeding, in which strict compliance with the requirements in matters of procedure is essential to jurisdiction. Pennsylvania R. Co. v. Roger, 62 L.R.A. 178, 52 W. Va. 450, 44 S. E. 300. f. The remedy by attachment and garnishment, is an extraordinary and harsh remedy in derogation of the common law, depending upon positive legislation for its existence, and he who invokes it must follow the law, at least in substance. American Nat. Bank v. Douglas, L.R.A.1917B, 588, 126 Ark. 7, 189 S. W. 161. g. Garnishment is in the nature of a proceeding in rem although there is no actual seizure of property under the order of attachment, for by service of the order upon the garnishee it arrests the debt in his hands and holds it, through him, subject to the judgment of the court. Pennsylvania R. Co., v. Rogers, 62 L.R.A. 178, 52 W. Va. 450, 44 S. E. 300. DEBTOR AND CREDITOR, § 4. EQUITY, 55 u. EVIDENCE, § 1203 j. INJUNCTION, §§ 100 g, 119 a-f. TRUSTS, § 129 c. Proceeds of see Matters as to exemptions, see EXEMPTIONS. Mortgaged property, see LEVY AND SEIZURE, $19 b. Unliquidated claim for freight charges, see a. Where the nonresident general agents of a nonresident steamship line, in order to prevent its funds coming under the jurisdiction of the courts of a state, require its brokers in that state to deposit their checks with the general agents to cover future business, and cash them as orders for transportation are received, so long as the amount of the checks exceed the amount of cash in the brokers' hands for transportation sold, there is no fund in their hands which can be reached by garnishment for the debt of the transportation company. Larsen v. Allan Line S. S. Co. 9 L.R.A. (N.S.) 1258, 45 Wash. 406, 88 Pac. 753. b. The liability of a mortgagee in possession after condition broken, to account for the surplus, is a credit of the mortgagor, and may be attached as such by the process of garnishment. Root & McB. Bros. v. Davis, 23 L.R.A. 445, 51 Ohio St. 29, 36 N. h. Garnishment is in the nature of a proceeding in rem, although there is no actual manual seizure of property by the executory officer, and jurisdiction of the debt or property sought to be thereby subjected must be obtained, else the court cannot pronounce E. 669. judgment of condemnation against it.l c. One who entered into possession, under a. In general. II. Persons and property subject. a lease, of a tract of land a portion of which c. District courts are authorized to sum. belonged to a stranger, is not liable to gar- mon public officials as garnishees under a nishment for the debt of his immediate statute providing that in all cases where lessor, although the lease has not expired the plaintiff has a judgment in some court or been canceled, where, to avoid eviction, of the state against the defendant, any or with the consent of his lessor, he has public officer may be summoned as garattorned to the stranger. Nashua Light, nishee. Southwestern Sav. Loan & Bldg. H. & P. Co. v. Francestown Soapstone Co. Asso. v. Awalt, L.R.A.1917F, 1117, 22 N. 18 L.R.A. (N.S.) 396, 74 N. H. 511, 69 Atl. M. 607, 166 Pac. 1181. 883. (Annotated) § 3. Plaintiff in main action, or his agent. d. A board of school trustees is not a "person" within the meaning of a statute authorizing attachment against "persons" who have in their hands effects of or are indebted to a nonresident, absent, or abDollman v. Moore, 19 sconding debtor. (Annotated) a. Plaintiff in an action to recover money can neither summon nor charge himself as garnishee therein, under a statute providing that in garnishment proceedings plaintiff L.R.A. 222, 70 Miss. 267, 12 So. 23. and the garnishee shall be deemed adversary parties, and that, when successful, plaintiff shall be entitled to execution if the garnishee fails to pay. First Nat. Bank v. Elliott, 55 L.R.A. 353, 62 Kan. 764, 64 Pac. 623. (Annotated) b. Since the right of a consignee of goods to satisfy his claim for shortage in the delivery out of the freight money due is superior to the rights of an attaching creditor of the carrier, he will not be permitted to levy an attachment upon such freight money in his own possession. H. J. Baker & Bro. v. Doe, 34 L.R.A. (N.S.) 510, 88 S. C. 69, 70 S. E. 431. § 7. State or Federal governments and officers. c. A consignee of goods cannot attach the freight money in the hands of his own agent to satisfy a claim for shortage in the consignment. H. J. Baker & Bro. v. Doe, 34 L.R.A. (N.S.) 510, 88 S. C. 69, 70 S. E. 431. (Annotated) § 4. Defendants. 14. a. On grounds of public policy, the government of the United States and the several states, and officers and agents thereof, are exempt from garnishment. Clark v. Osage County, L.R.A.1917B, 1269, 161 Pac. 791. Okla. b. Money in the hands of a disbursing officer of the national or state government cannot be reached by garnishment process or creditor's bill. Dow v. Irwin, L.R.A. 1916E, 1153, 21 N. M. 576, 157 Pac. 490. § 8. County or municipality. Liability to creditor's bill, see CREDITORS' BILL, § 2 j. See also JUDGMENT, § 343 b. a. A county is, on grounds of public policy, exempt from garnishment, both legal and equitable. Clark v. Osage County, L.R.A.1917B, 1269, 791. Okla. 161 Pac. a. An administrator may be made garnishee for the amount owing him for fees, b. Public policy, in the absence of legisin a proceeding to collect a debt against lative authorization, forbids the garnishhim individually. Sanders v. Herndon, 5 ment of a county for money due its credL.R.A. (N.S.) 1072, 122 Ky. 760, 93 S. W.itors whether the remedy by which it is (Annotated) sought to reach such funds is denominated as legal or equitable, as a county should not be required to litigate with private parties with whom it has no concern the validity of the debt with which the county is sought to be garnished. Dow v. Irwin, L.R.A.1916E, 1153, 21 N. M. 576, 157 Pac. 490. § 5. Officer of corporation. a. The treasurer of a private corporation § 6. Public officers generally. II. b. a. Public officials are not liable to the process of garnishment of sums held by them in their public capacity. Allen v. Gerard, 49 L.R.A. 351, 21 R. I. 467, 44 Atl. 592. b. A clerk of court is a public officer, within the rule that money is not subject to attachment in the hands of such officers. Dale v. Brumbly, 64 L.R.A. 112, 98 Md. 468, 56 Atl. 807. (Annotated) d. A statute naming corporations among those subject to garnishment does not apply to a county. State ex rel. Summerfield v. Tyler, 37 L.R.A. 207, 14 Wash. 495, 45 Pac. 31. e. A writ of garnishment against a county is not authorized by a statute providing that every person who shall have brought a suit in any court of the state against any person, natural or corporate, shall have a right to a writ of garnishment, to subject any indebtedness due to the defendant by a third person, and any goods, moneys, chat II. Persons and property subject. a. In general. tels, or effects of the defendant in the such extent as to have become domiciled possession or control of a third person, and therein. Pennsylvania R. Co. v. Rogers, 62 that the officers, agents, and employees of L.R.A. 178, 52 W. Va. 450, 44 S. E. 300. companies or corporations shall be, as re- b. Concurrent jurisdiction exists in the gards such companies or corporations, third courts of different states for the garnishpersons, and as such subject to garnishment ment of a foreign corporation which by its after judgment against the companies or agents is doing business in each state. corporations. Duval County v. Charleston Lancashire Ins. Co. v. Corbetts use of WilLumber & Mfg. Co. 60 L.R.A. 549, 45 Fla. son, 36 L.R.A. 640, 165 Ill. 592, 46 N. E. 256, 33 So. 531. 631. f. Municipal corporations are not subject to garnishee process unless the right to so subject them is conferred by clearly expressed legislation. Duval County v. Charlestown Lumber & Mfg. Co. 60 L.R.A. 549, 45 Fla. 256, 33 So. 531. g. A municipality is not subject to garnishment for the claims of laborers and materialmen. Electric Appliance Co. v. United States Fidelity & G. Co. 53 L.R.A. 609, 110 Wis. 434, 85 N. W. 648. h. A city may be garnished for money in its hands due to a nonresident contractor, if the city itself makes no objections. Portsmouth Gas Co. v. Sanford, 45 L.R.A. 246, 97 Va. 124, 33 S. E. 516. § 9. Soldiers' home. a. A soldiers' home established on land, jurisdiction over which is ceded to the Fed eral government, is not subject to garnishment in a state court for a debt due a citizen of the state, under a statute permitting all corporations having a place of business or doing business within the state to be summoned as trustee. Brooks Hardware Co. v. Greer, 46 L.R.A. (N.S.) 301, 111 (Annotated) Me. 78, 87 Atl. 889. § 10. Nonresident. a. A nonresident, temporarily in the state, may be summoned and compelled to answer as garnishee, but if, upon his answer, it be established that he is a nonresident, he cannot be subjected to further proceedings in the cause, for want of jurisdiction, unless, when garnished, he have in the state property of the defendant in his possession, or be bound to pay the defendant money or deliver to him property within the state. Pennsylvania R. Co. v. Rogers, 62 L.R.A. 178, 52 W. Va. 450, 44 S. E. 300. b. The courts of a state have jurisdiction to entertain garnishment proceedings against nonresident parties in all cases where the defendant and garnishee are both personally served with process while within that state. McShane v. Knox, 20 L.R.A. (N.S.) 271, 103 Minn. 268, 114 N. W. 955. § 11. Foreign corporation. See also post, § 30 e. c. A foreign corporation having property and agents in the state and transa ting business there may be garnished for a debt due to a nonresident. Lancashire Ins. Co. v. Corbetts use of Wilson, 36 L.R.A. 640, 165 Ill. 592, 46 N. E. 631. d. A foreign corporation having its principal office and place of business and various lines of railroad in another state, although it operates a road extending into the state where garnishment proceedings are attempted, is not subject to garnishment there under a statute providing that no person shall be summoned as trustee unless he resi les in the state. Craig v. Gunn, 27 L.R.A. 511, 67 Vt. 92, 30 Atl. 860. e. Railroad corporations owring and operating railroads in a state other than that by which they were chartered have the status of residents of such state, although they are not citizens of it within 3, and clause 1 of § 2 of article 4, of the the meaning of clause 1 of § 2 of article Constitution of the United States, nor domiciled in such state in the technical sense of that term; and such corporations may be proceeded against as garnishees. without reference to the jurisdiction in which debts due from them were contracted or are payable. Baltimore & O. R. Co. v. Allen, 3 L.R.A. (N.S.) 608, 58 W. Va. 388, 52 S. E. 465. f. In an action brought by a resident plaintiff to recover damages for a negligent shipment of goods to a point in the state over the lines of the defendant, a debt due from a foreign corporation doing business in the state, to defendant corporations not doing business therein, is subject to garnishment. Starkey v. Cleveland, C. C. & St. L. R. Co. L.R.A.1915F, 880, 114 Minn. 27, 130 N. W. 540. (Annotated) g. A debt due from a foreign railroad corporation operating no railroad in this state, and doing no business here other than maintaining, jointly with other railroads an agency relating to through freight service, and for the soliciting of freight for such company, to be handled on its lines without the state, is beyond the territorial jurisdiction of the courts of this state, and not subject to garnishment here. Pennsylvania R. Co. v. Rogers, 62 L.R.A. 178, 52 W. Va. 450, 44 S. E. 300. h. A foreign insurance company authorized to do business within the state is a. Foreign corporations and nonresident chargeable there as trustee for money due individuals stand upon the same footing its agent for commissions on business done in respect to garnishment, except that the there, under a statute providing that a performer are subject to garnishment when son doing business in the state and residdoing business in the state in which the ing outside may be charged as trustee, as garnishment issues, in such sense and to if he were an inhabitant of the state, for L.R.A. Comb. Dig.-298. II. Persons and property subject. a. In general. any credits of the defendant by reason of creditor is more than sufficient to satisfy contracts performed within the state. Steer v. Dow, 20 L.R.A. (N.S.) 263, 75 N. H. 95, 71 Atl. 217. i. A foreign corporation may be charged as garnishee in all cases where an original action might be maintained against it for the recovery of the property or credit in respect to which the garnishment is served. Neufelder v. German-American Ins. Co. 22 L.R.A. 287, 6 Wash. 336, 33 Pac. 870. (Annotated) § 12. Maker of negotiable instrument. Garnishment of drawer of check as debtor of payee, see PAYMENT, § 14 g. a. Whatever be the form of commercial paper that evidences the original liability of the party summoned as garnishee, he cannot be charged as the debtor of the payee, if the paper was negotiable when issued, and still retains its negotiability. Fisher v. O'Hanlon, L.R.A.1918Č, 727, 93 Neb. 529, 141 N. W. 157. § 13. Contingent liabilities. Levy on, see LEVY AND SEIZURE, §§ 12-16. a. A debt must be one that is due or which will become due absolutely, without depending on any contingencies, to be subject to garnishment, under a statute providing for the garnishment of "any indebtedness due" to defendant, in the hands, possession, or control of a third person. West Florida Grocery Co. v. Teutonia F. Ins. Co. L.R.A.1918B, 968, Fla. 77 So. 209. b. An indebtedness which may never become due according to circumstances yet to occur, or which is not determinable by a fixed and certain method of calculation, is not subject to garnishment, under a statute authorizing the garnishment of "any indebtedness due" to defendant in the hands, possession, or control of a third person, and requiring the garnishee to "state on oath whether he is, at the time of the answer, indebted to the defendant, or was indebted at the time of the service of the writ, or at any time between such periods, and in what sum or sums." West Florida Grocery Co. v. Teutonia F. Ins. Co. L.R.A.1918B, 968, Fla., 77 So. 209. c. A writ of garnishment will not lie where there is anything contingent or to be done by a person before the liability of another becomes fixed, under a statute providing for the garnishment of "any indebtedness due" to defendant, in the hands, possession, or control of a third person. West Florida Grocery Co. v. Teutonia F. Ins. Co. L.R.A.1918B, 968, Fla. -, 77 So. 209. d. The interest of a lien creditor in a fund held by trustees under an assignment for the benefit of creditors, consented to by all creditors, and apportioned by the trustees, but not paid because of a dispute, is not money due upon a contingency, so as to exclude it from the operation of a statute relating to garnishment which excludes money depending on any contingency, especially where the share apportioned to the lien the claim of the plaintiff in the garnishment proceedings, and at the time the trial took place the trustees had completed their trust and determined definitely the amount due the lien creditor, and paid that amount into court to be disposed of as the court should direct. National Surety Co. v. Hurley, L.R.A.1918F, 440, 130 Minn. 392, 153 N. W. 740. (Annotated) § 14. Demand not matured. See also EXECUTION, § 9 d. a. The indebtedness of the maker upon a promissory note before its maturity is not subject to garnishment and a creditor of the payee, who has not obtained possession and custody of the note, acquires no right by such a proceeding. Fisher v. O'Hanlon, L.R.A.1918C, 727, 93 Neb. 529, 141 N. W. (Annotated) 157. amount due for materials furnished to one b. A county cannot be garnished for an contracting with the county who gives up the contract before it is completed. where under its provisions there was no liability until full performance. Clark v. Osage County, L.R.A.1917B, 1269, 161 Pac. 791. Okla. § 15. Money in hands of defendant's agent. Presumption as to ownership of money in bank in name of certain person as "agent," see EVIDENCE, § 469 a. a. Money received from a lottery company by its agent and deposited to his credit in the bank, with the intention of ultimately applying it to the payment of one of the certificate holders of the company, remains the money of the company, and is subject to garnishment by one holding a claim against it. Fidelity Funding Co. v. Vaughn, 10 L.R.A. (N.S.) 1123, 18 Okla. 13, 90 Pac. 34. § 16. Payment to defendant by garnishee before garnishment. See also ante, § 2 a. a. A garnishee who has paid his obligation to a debtor with checks, is under no obligation to stop payment on the checks after the service of the writ of garnishment merely to help the garnisheeing creditor. Larsen v. Allan Line S. S. Co. 9 L.R.A. (N.S.) 1258, 45 Wash. 406, 88 Pac. 753. b. An administrator is not subject to garnishment for the share of a distributee of the estate after the delivery of a postdated check for the amount of such share, although his account has not been passed by the court. American Agri. Chemical Co. v. Scrimger, L.R.A.1917F, 394, 130 Md. 389, 100 Atl. 774. (Annotated) c. A debt is not the subject of garnishment after delivery of a check in payment, especially where it has passed into the hands of a third person as absolute owner, although it has not yet been collected. National Park Bank v. Levy Bros. & Co. 19 L.R.A. 475, 17 R. I. 746, 24 Atl. 777. (Annotated) II. Persons and property subject. a. In general. 17. Property or right conveyed or § 18. Property fraudulently conveyed. assigned before garnishment. See also post, §§ 52 d, 63 e, 64 c. See FRAUDULENT CONVEYANCES, § 46. § 19. Property of nonresident. a. Where the principal defendant has made a valid assignment of the garnishee's indebtedness, or conveyance of the property in his possession belonging to such defend- a. A state having property of a nonresiant, before the service of the summons upon dent within its territory may appropriate the garnishee, the latter cannot be charged it to satisfy demands of her citizens. Wall on account of such debt or property. Hall v. Norfolk & W. R. Co. 64 L.R.A. 501, 52 v. Kansas City Terre Cotta Co. L.R.A. W. Va. 485, 44 S. E. 294. 1916D, 361, 97 Kan. 103, 154 Pac. 210. b. As between a garnishing creditor and the holder of a check drawn by a depositor on his account to one who has advanced him the amount of money called for by the check, the holder of the check has the better right to the deposit, to the amount called for by his check. Farrington v. F. E. Fleming Commission Co. 47 L.R.A. (N.S.) 742, 94 Neb. 108, 142 N. W. 297. c. A judgment creditor of a tenant in common who has deeded his share in the common property to a cotenant cannot, as against the rights of the grantee, reach by garnishment the share awarded to his debtor after a sale in partition proceedings instituted by another tenant in common, in which the rights under the deed were not brought to the attention of, or adjudicated by, the court. Shuler v. Murphy, 14 L.R.A. (N.S.) 333, 91 Miss. 518, 44 So. 810. d. The administrator cannot be garnished to reach funds to satisfy a judgment against his decedent's heirs and legatees, if, prior to his appointment, they have assigned their interest in the estate. Pugh v. Jones, 11 L.R.A. (N.S.) 706, 134 Iowa, 746, 112 N. W. 225. e. An assignment by a public officer of the fees to be earned by him through the exercise of his office may become effective as the fees accrue, so as to take precedence of a garnishment subsequently levied. Roesch v. W. B. Worthen Co. 31 L.R.A. (N.S.) 374, 95 Ark. 482, 130 S. W. 551. (Annotated) f. Failure of the holder of a note to secure which the maker has assigned fees to be earned by him as a public officer, to credit the fees as they accrue, will not prevent his holding them against a garnishee, if they are in possession of the assignee. Roesch v. W. B. Worthen Co. 31 L.R.A. (N.S.) 374, 95 Ark. 482, 130 S. W. 551. g. A plaintiff who causes a writ of garnishment to be served upon the debtor of the defendant is not a purchaser for value, and therefore cannot take the debt as against a prior assignee thereof for value, who has not given notice to the debtor of his assignment. Market Nat. Bank v. Raspberry, L.R.A.1916E, 79, 34 Okla. 243, 124 Pac. 758. (Annotated) h. Notice to a debtor of an assignment for creditors made in another state by his creditor need not be given him before an attachment of the chose in action, in order to make the assignment binding upon him, if he receives the notice pendente lite in time to avail himself of it in discharge of the suit against him. Fenton v. Edwards, 46 L.R.A. 832, 126 Cal. 43, 58 Pac. 320. § 20. Debt due nonresident. 657 a. See also post, §§ 26 a, 29 a. a. Garnishment of a debt due to a non resident need not be based on any statute, b. The jurisdiction of garnishment of a § 21. Property located in another state. a. Property located in another state is not the subject of garnishment under the Iowa statute." Montrose Pickle Co. v. Dodson & H. Mfg. Co. 2 L.R.A. 417, 76 Iowa, 172, 40 N. W. 705. b. Personal property under the control of the garnishee, but situated out of the state where suit is brought, cannot be reached by the process of garnishment. Dart Mfg. Co. v. Carr, L.R.A.1916E, 449, 174 Iowa, 471, 156 N. W. 714. § 22. Claim for unliquidated damages. Levy on unliquidated claim generally, see LEVY AND SEIZURE, § 37. See also post, § 23 b. a. A claim for unliquidated and uncertain damages for breach of contract is not subject to garnishment. Waples-Platter Grocer Co. v. Texas & P. R. Co. 59 L.R.A. 353, 95 Tex. 486, 68 S. W. 265. b. That a claim for unliquidated damages for breach of contract has been reduced to judgment does not render it subject to garnishment pending an appeal therefrom. Waples-Platter Grocer Co. v. Texas & P. R. Co. 59 L.R.A. 353, 95 Tex. 486, 68 S. W. 265. (Annotated) c. A claim for unliquidated damages arising out of contract is not the subject of trustee process, although a verdict has been rendered for it in favor of the principal debtor against the trustee, in which judgment has not been entered under a statute authorizing process only when the trustee has in his possession "goods, effects, or credits" of the principal debtor, and contemplating that the whole matter shall be disposed of on the answer of the trustee. Wilde v. Mahaney, 62 L.R.A. 813, 183 Mass. 455, 67 N. E. 337. |