Dennistoun v. New York Croton & Steam Faucet Co.

6 La. Ann. 782

• Court: Supreme Court of Louisiana
• Decided: December 15, 1851
• Status: Published

Opinion

The judgment of the court (Eustis, C. J., absent,) was pronounced by

Sbibem., J.

The plaintiffs brought suit, by attachment, against the New York Croton and Steam Faucet Company, and garnisheed Eadie, their agent. At the time of the garnishment, he had in his hands merchandise belonging to the company. Judgment was duly obtained against the company, with privilege on the property attached.

While the attachment was pending, Eadie transferred to White ¿y Co. two notes, proceeding from sales of the property of the company, and certain casks of merchandise, also their properly. White &f Co. were creditors of the company, and agreed to apply the proceeds of the notes and merchandise to pay their claims, and account to Eadie, as the company’s agent, for the balance, if any.

It is argued, on the part of White Co., that the attachment did not hold the merchandise in Eadie’s hands, because, say they, to make a valid seizure of tangible property, it must be taken into actual possession by the sheriff. They cite Fluker v. Bullard, 2d Ann. 338. Simpson v. Allain, 7 R. R. 504. Goabeau v. New Orleans and Nashville Railroad Company, 6 R. R. 348.

The argument improperly confounds the case of ordinary seizure upon fieri facias with that of garnishment. In pursuing the latter remedy, the creditor reaches the property of his debtor through the garnishee. By the service of proper process, in the form which the law has prescribed for this particular remedy, the garnishee becomes the custodian of the property for the purposes of the garnishment. The law does not require, for the validity of this species of seizure, that the property should be taken out of the hands of the garnishee. There is an expression in the 257th article of the Code of Practice, which, considered alone, would countenance the opposite doctrine; but it must be interpreted with reference to the other provisions of the code upon the subject of garnishment. See 246, 250, 251, 263, 264. In the case of Scholefiel v. Manlee, 8 M. R. 507, which occured before the adoption of the Code of Practice, but. under a similar legislation, (see act of 1811, Martin’s Digest, vol. 1, p. 518, ct seq.,) the court observed: “We think not only that an attachment in the hands of a garnishee is sufficient to place the property in the custody of the law, but that after the service of such an attachment, the sheriff had no right to go and take the property from the garnishee without a further order of the court.” In that case, the garnishee was cited and answered. In the case of Lapeyre Harispe 8f Co. v. Carlos Cruzat Sf Co., it was disclosed, by the answers of the garnishees, that they had notes in their hands belonging to the defendants. It was held, that the. garnishee conld not be compelled to deliver the notes to the sheriff before judgment was obtained against the defendants.

*

We consider the evidence as establishing knowledge on the part of White 4* Co., when they received the notes and goods from Eadie, that the property of the defendants was attached in his hands. They acted, it would seem, under the belief that there was property enough left to cover the claim of the plaintiffs. It turns out, however, that'there is a deficit; and their rights, under the assignment from Eadie, being acquired with notice, must yield to the antecedent rights of the attaching creditor.

It is therefore decreed, that the judgment of the district court be reversed. And it is further decreed, that the said W. W. White Sf Co. do, within ten days, surrender to the sheriff, the goods and notes confessed by their answer to have been received from John M. Eadie, and described in the receipt dated 19th June, 1850, which is of record in 'this cause, in order that said notes and goods may be, in due course of law, applied to the satisfaction of the judgment in favor of the plaintiffs against the said defendants in attachment; and that, in default of such surrender, the said plaintiffs do recover from the said W. W. White 4" Co.', the sum of three hundred and nineteen dollars and twenty-one cents, with interest thereon at seven per cent per annum, from the 13th day of July, 1850, until paid. It is further decreed, that the costs of the proceedings against said W. W. WJiite 4" Co., in both courts, be paid by the said W. W. White 8f Co.

Wom — This case was decided in January, 1849’, and is not reported.