Myers v. Smith

29 Ohio St. 120

• Court: Ohio Supreme Court
• Decided: December 6, 1876
• Status: Published

Opinion

White, J.

It appears from the record that after the issuing of the attachment, and service upon the garnishees, the defendant gave-bond, with surety to the acceptance of the coui’t, for the discharge of the attachment.

Tlie giving of the bond or undertaking is provided for by section 212 of the code; and the effect of the undertaking, when given, is also prescribed.

The condition is required to be “to the effect that the defendant shall perform the judgment of the court.” On the giving of the undertaking, it is declared that “ the attachment in such action shall be discharged, and restitution made of any property taken under it, or the proceeds thereof.” It is likewise declared that the undertaking “ shall also discharge the liability of a garnishee in such action for any property of the defendant in his hands.”

The object of the section is to enable the defendant to •supersede the proceedings under the attachment, by giving security to perform the judgment that may be recovered against him in the action.

The undertaking takes the place of the property attached or liable to be attached in the action.

After the execution of the undertaking, the garnishees appeared and answered as required by the process with which they were served; and their alleged indebtedness to the defendant seems to have been regarded as still held by the attachment.

The defendant moved to discharge them, for the reason that they could not be held as garnishees. The motion was overruled, and this ruling is supported by the court, on the ground that the indebtedness of the garnishees to the firm of Myers & DeHam was subject to be attached by the plaintiff' for the separate debt of Myers.

We do not assent to the doctrine laid down by the court that partnership demands can be garnisheed for the separate debt of one of the partners. If the firm is indebted "to the defendant in attachment, on settlement of the partnership or otherwise, and the other partners are within the jurisdiction of the court, such indebtedness may be garnisheed in their hands. But if the other partners are not subject to the process of the court, they can not be brought within its jurisdiction in this indirect way, in order to compel a settlement of the partnership, for the purpose of ascertaining whether one of the parties has such an interest in a particular debt due the firm, as to justify its appropriation to the payment of his individual indebtedness.

It is well settled in the law of partnership that one partner can not, without the assent of his co-partners, apply firm assets to the payment of his separate indebtedness.

The proceeding in attachment is purely a statutory remedy. Under the statute, the garnishee is authorized to pay the money garnisheed in his hands into court, or to the sheriff having the order of attachment; and in all cases in which he admits an indebtedness to the defendant, the court may order the payment of the same, or any part thereof, to the plaintiff.

It was surely not intended by the statute to authorize' the separate creditors of one of the partners to accomplish against the partnership assets what the partner himself is prohibited from doing.

But in the present case, without regard to the character of the indebtedness, the defendant was entitled, after the execution of the undertaking, to have the garnishee discharged from all liability; and the court should have so ordered, and thus have enabled him to settle with them unembarrassed by the garnishment.

It is contended for the defendant in attachment that, independent of the undertaking, he had the right on the facts shown by the answer of the garnishees to have them discharged. But this position is not correct.

The plaintiff was not concluded by the answer of the garnishees. If the disclosures in their answer were not satisfactory to the plaintiff he was authorized to proceed against them by action on that ground. Hence, against thé consent of plaintiff', the defendant would have no right to their discharge on the ground that their answer failed to show any interest of the defendant subject to attachment.

True, if the proceedings were purely in rent, and the jurisdiction depended ou finding in the hands of the garnishees property of the defendant subject to garnishment,, the fact that such property existed would have to be found before the suit in attachment could proceed to final judgment.

But this would not be the case where the court had jurisdiction of the person of the defendant.

Iu the present case the defendant, by demurring to the petition, effected his voluntary appearance, and brought himself as fully under the jurisdiction of the court as if he had been personally.served with summons.

Oases are cited which support the view taken by the court below, but the weight of authority and, we think, the better reason, are to the contrary.

What has been said in this opinion has reference to attaching partnership credits for the separate debt of one of the partners. v

Tangible property of the firm stands on a different footing, and we intend in no degree to qualify the recognized right of the separate creditors to levy on the interest of one of the partners in such property. Nixon v. Chatfield, 12 Ohio St. 648.

Judgment reversed and cause remanded.