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Citation to

garnishee

before a

Judge.

agreement, take it out of the hands of the Sheriff and loan it out to third parties, these parties are not the bailees of the Sheriff, and the money ceases to be in the custody of the law, and can only be reached on proceedings supplementary to execution, in the same manner as other debts are reached.-Hathaway vs. Brady, 26 Cal., p. 586. The defendant, previous to the suit of the plaintiff against the R. S. Mining Co., sued the company and obtained judgment against it by default. The judgment was made to draw a certain rate of interest, without there being any prayer for such relief in the complaint, and was erroneous in certain other respects. On appeal, the judgment was modified in certain respects. There was no stay of proceedings in the Court below, and before the decision on appeal the defendant had taken out an execution, and caused the mining claims of the R. S. Mining Company to be sold. At the sale the defendant bid the full sum for which his execution called, and became the purchaser. He paid the Sheriff no money except his fees on the execution, but gave him a receipt for a sum equal to the face of the execution, less the fees paid to the Sheriff. The R. S. M. Company had ceased to work their mine prior to this sale. After the sale a contract was made between the defendant and the company, by which the latter agreed to work the mine during the time allowed for redemption, and pay over the proceeds to the defendant, and the latter agreed to pay all the expenses of working, and to pay the company wages. Under this contract the defendant received from the mine, over and above expenses, the sum of $7,000 in gold dust. Plaintiff, as an attaching creditor of the R. S. Mining Company, brings suit against the defendant as garnishee. Held: that the case presented failed to make the defendant a debtor of the company within reach of plaintiff's attachment.-Johnson vs. Lamping, 34 Cal., p. 295.

545. (§ 128.) Any person owing debts to the de

to appear fendant, or having in his possession, or under his conCourt or trol, any credits or other personal property belonging to the defendant, may be required to attend before the Court or Judge, or a referee appointed by the Court or Judge, and be examined on oath respecting the same. The defendant may also be required to attend for the purpose of giving information respect

ing his property, and may be examined on oath. The Same. Court or Judge may, after such examination, order personal property, capable of manual delivery, to be delivered to the Sheriff on such terms as may be just, having reference to any liens thereon or claims against the same, and a memorandum to be given of all other personal property, containing the amount and descrip

tion thereof.

NOTE.-See note to preceding section. Where a garnishee answers on oath that he was released by the plaintiff, and that the plaintiff had abandoned his examination, he should be discharged by the Court, unless his answer is controverted by the affidavit of the plaintiff.-Ogden vs. Mills, 3 Cal., p. 253. He can only be required to answer as to his liability, to the debtor, at the time of the service of the garnishment. Norris vs. Burgoyne, 4 Cal., p. 409. He should be allowed to amend his answer, whenever it appears that he was mistaken or in error, and that either could not have been reasonably avoided.-Smith vs. Brown, 5 Cal., p. 118. Where B. was garnished in a suit against C., the day before he accepted an order drawn by A. in favor of C., but failed to inform C. thereof; and C., for a valuable consideration, sold the order, as indorsed, to D., an innocent purchaser. It was held: that B. was estopped from setting up against it any antecedent matter, and is liable to D. for the full amount thereof. Garwood vs. Simpson, 8 Cal., p. 101. A plaintiff who has sued out an attachment, and given the necessary notice to a garnishee that the property in his hands is attached, and subsequently the garnishee fraudulently disposes of the property, may waive his lien on the property and bring suit for the value of the property against the garnishee.-Roberts & Co. vs. Landecker, 9 Cal., p. 262.

Unless the answer of a garnishee discloses liens having priority, judgment must be rendered for the amount he admits is due.-Cahoon vs. Levy, 4 Cal., p. 244. Garnishment of bailor.-Hardy vs. Hunt, 11 Cal., p. 343. An order requiring the garnishee to pay into Court the amount for which judgment has been rendered against him, is improper.-Smith vs. Brown, 5 Cal., p. 118; Brummagim vs. Boucher, 6 Cal., p. 16. The provisions of this section do not confer a privilege upon the garnishee. The plaintiff may or may not

61-VOL. I.

Inventory, how made.

require the garnishee to appear and answer on oath, and his liability will not be affected by the failure of the plaintiff to take such a step.-Roberts & Co. vs. Landecker, 9 Cal., p. 262. Where shares of stock in a corporation have been regularly transferred as security for a loan, the corporation is no longer in privity with the mortgagor, and the mortgagee is the only proper garnishee in a suit against the mortgagor, in order to attach his interest in the corporation.-Edwards vs. Beugnot, 7 Cal., p. 162. After the delivery and presentation of an order, a debt due by the drawee cannot be reached on attachment issued by the creditors of the drawer. Wheatley vs. Strobe, 12 Cal., p. 92. Plaintiff delivered to defendants gold dust, to be forwarded to San Francisco, to be coined and returned. The dust belonged to five persons, partners in mining, of whom plaintiff and C. were two. While the dust was in the hands of defendants, C. sold to plaintiff his interest in it, and gave a receipt evidencing the sale. Defendants after this received coin made of the dust, and a creditor of C. attached the coin by garnisheeing defendants. Defendants had no notice of the sale to plaintiff until the day after the attachment, when plaintiff demanded C.'s share of the coin. It was held: that plaintiff was entitled to the coin; that the dust in defendants' hands was in the constructive possession of all the five owners, C. having no exclusive interest in any part until it was converted into coin and divided among the owners; that C.'s right in the dust was a chose in action, which he could assign by order in favor of the purchaser or assignee, and after such order, neither C. nor his creditors could claim any right to the money, and that the Statute of Frauds has no application to a case like this.-Walling vs. Miller, 15 Cal., p. 38.

546. (§ 129.) The Sheriff must make a full inventory of the property attached, and return the same with the writ. To enable him to make such return as to debts and credits attached, he must request, at the time of service, the party owing the debt or having the credit to give him a memorandum, stating the amount and description of each; and if such memorandum randum be refused, he must return the fact of refusal compelled with the writ. The party refusing to give the memorandum may be required to pay the costs of any pro

Party

refusing to give memo

may be

to pay

costs.

ceedings taken for the purpose of obtaining information respecting the amounts and description of such debt or credit.

property,

how sold.

547. (§ 130.) If any of the property attached be Perishable perishable, the Sheriff must sell the same in the manner in which such property is sold on execution. The proceeds, and other property attached by him, must be retained by him to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment recovered previous to the issuing of the attachment. Debts and credits Accounts attached may be collected by him, if the same can be suit to he done without suit. The Sheriff's receipt is a sufficient discharge for the amount paid.

NOTE.-Sale of perishable property.-Davis vs. Ainsworth, 14 How., p. 346. Collection of debts.-33 How., p. 316; 50 Barb., p. 587; 2 Daly, p. 231.

548. (§ 654.) Whenever property has been taken by an officer under a writ of attachment, and it is made to appear satisfactorily to the Court, or a Judge thereof, or a County Judge, that the interest of the parties to the action will be subserved by a sale thereof, the Court or Judge may order such property to be sold in the same manner as property is sold under an execution, and the proceeds to be deposited in the Court, to abide the judgment in the action. Such order can be made only upon notice to the adverse party or his attorney, in case such party has been personally served with a summons in the action.

without

collected.

Property may be

attached

sold as under

xention, interests

if the

of the

parties

require.

property

by a third

party, how

tried.

549. (§ 131.) If any personal property attached When be claimed by a third person as his property, the claimed Sheriff may summon a jury of six men to try the validity of such claim; and such proceedings shall be had thereon, with the like effect, as in case of a claim after levy upon execution.

If plaintiff obtains

how

satisfied.

NOTE.-Davidson vs. Dallas, 8 Cal., p. 227; Bleven vs. Freer, 10 Cal., p. 172; Treadwell vs. Davis, 34 Cal., p. 601.

550. ($ 132.) If judgment be recovered by the judgment, plaintiff, the Sheriff must satisfy the same out of the property attached by him which has not been deliv ered to the defendant, or a claimant as hereinbefore provided, or subjected to execution on another judg ment recovered previous to the issuing of the attachment, if it be sufficient for that purpose:

When there remains a balance due, how collected.

1. By paying to the plaintiff the proceeds of all sales of perishable property sold by him, or of any debts or credits collected by him, or so much as shall be necessary to satisfy the judgment;

2. If any balance remain due, and an execution shall have been issued on the judgment, he must sell under the execution so much of the property, real or per sonal, as may be necessary to satisfy the balance, if enough for that purpose remain in his hands. Notices of the sales must be given, and the sales conducted as in other cases of sales on execution.

NOTE.-The term "judgment" means a final one.Wright vs. Rowland, 4 Keyes, p. 165; 36 How., p. 248. The application of the attaching creditor to compel the Sheriff to pay over the proceeds of property attached, there being conflicting claims between several attaching creditors, may be made by motion. If notice of the motion is not given by the party to the other attaching creditors, it is the duty of the Sheriff to do so, if he wishes the decision to bind them.-Dixey vs. Pollock, 8 Cal., p. 570.

551. ($ 133.) If, after selling all the property attached by him remaining in his hands, and applying the proceeds, together with the proceeds of any debts or credits collected by him, deducting his fees, to the payment of the judgment, any balance shall remain due, the Sheriff must proceed to collect such balance, as upon an execution in other cases. Whenever the judgment shall have been paid, the Sheriff, upon

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