Junghanns v. Ramos Tulier

5 P.R. Fed. 559

Opinion

Rodey, Judge,

delivered the following opinion:

This cause by stipulation was tried before the court on November 9, 1909, without the intervention of a jury. Neither of tbe parties bas filed briefs, although they were requested so to do. Tbe stenographer bas made a transcript of tbe evidence, and we have just examined tbe same, together with tbe exhibits. We will state tbe ease as we understand it from tbe examination just made, and this statement involves inferences that we feel are fully justified from tbe exhibits and record.

Tbe case is quite simple. Plaintiff was the owner of a judgment against one Eugenio Lorenzo Rodriguez, who was absent from Porto Rico, amounting to about $11,000. Plaintiff’s attorney in this cause was tbe attorney in fact for Rodriguez in Porto Rico, and desired for bis principal to pay all of plaintiff’s judgment that be could. There was another judgment outstanding in one of tbe insular courts against said Rodriguez. One of Rodriguez’s farms was to be sold for taxes. Plaintiff conceived that tbe best mode to collect some of bis judgment and get a better title to tbe land was to buy it in for taxes, for which it was soon about to be sold, and then credit tbe surplus of tbe bid, as he would have to pay tbe taxes in cash, on tbe debt that was due him. Rodriguez’s attorney in fact was agreeable to this. Plaintiff, on May 12, 1908, attended tbe tax sale and bought tbe property for $1,200, tbe amount of taxes due on it being only $120. So there was $1,080 surplus which plaintiff expected to credit on the debt which was due him. He did not have an assignment of tbe surplus to himself, and be didn’t care, or could not, for some reason, get an execution against Rodriguez on that date, and so three days later, on tbe 15th, be put up a check for tbe surplus of $1,080 to keep tbe bargain fixed, which check be admits there was no money in tbe bank to pay, but he claims that tbe collector, who is the defendant, agreed that be would not cash tbe check for a few days. At tbe time or immediately after tbe tax sale, tbe collector, knowing about tbe other judgment, and evidently intending to belp tbe owner of it, notified tbe attorneys in the case at San. Juan of tbe sale and of tbe intended payment of this money to bim, and on tbe 16th of May proper process of garnishment from tbe district court at San Juan was served upon him. Then on tbe 22d of May, six days later, plaintiff appeared again at tbe collector’s office with a proper assignment of tbe surplus to himself from tbe attorney in fact of Rodriguez, and immediately banded tbe same to tbe collector and made tbe deposit of tbe $1,080 in cash, which, of course, be immediately wanted back, or expected back through the treasury department, as he thought he was the owner of it under tbe assignment. The defendant did not tell him anything about tbe garnishment previously, and it is not certain from the record whether he told him about it on that day or not, but in due course thereafter, in the succeeding June, the money thus garnished was paid on tbe process of the insular court on account of the other judgment. It will thus be seen that tbe tax sale took place on May 12th, and tbe money became due and plaintiff became liable for it on that day, whether he had paid it or not. Therefore the garnishment of date the 16th caught the money, even though it was not then paid in. The evidence shows that the assignment from Rodriguez’s attorney in fact to plaintiff of that surplus was made some time after the 15th. It is well known that a garnishment holds not only what is due, but what becomes due before the return of the garnishee. After the 22d of May, plaintiff bad knowledge that bis money was garnished, and could have fought the matter in tbe insular court, but did not, and, it is presumed, took his deed in regular course for the property he bought at the tax sale.

It does not concern the court that it is manifest the collector was a partisan of the owner of the other judgment, and was instrumental in inveigling plaintiff into paying the money to him after he had been garnished by the owner of the other judgment. The money was due from the moment of the tax sale on the bid, and it was due at the time of the garnishment, and the collector had not been served with any assignment of that surplus to plaintiff at the time the notice of garnishment was served upon him, — therefore clearly the owner of the other judgment had the best title to the money from the 16th on.

This is all there is in the case, and on these facts we unhesitatingly find for the defendant with costs, including the stenographer’s fee of $15 for making the transcript. Therefore a judgment will be entered accordingly.