Richardson v. Independent School-District No. 1

38 N.W. 553, 5 Dakota 277, 1888 Dakota LEXIS 24

• Court: Supreme Court Of The Territory Of Dakota
• Decided: May 24, 1888
• Status: Published

Opinion

Thomas, J.

This is an appeal from a judgment for costs rendered in favor of respondent in this case in the court below.

The complaint, among other things, alleges that the plaintiff obtained judgment before a justice of the peace against one Alice Gorman for the sum of $100 and costs; that a transcript, duly certified, of said judgment, was filed and made a matter of record in the office of the clerk of the district court of Grand Forks county; that execution was issued out of and under the seal of the district court to satisfy said judgment out of the personal property, etc., of said Alice Gorman; that said execution was indorsed by said plaintiffs, and delivered to the sheriff of said county; that by virtue of said execution said sheriff levied upon certain moneys belonging to the said Alice Gorman then in possession of the defendant herein; defendant then and there acknowledged that it had moneys in its hands and under its control belonging to said Gorman, and through its duly-authorized officer delivered to the sheriff a voucher or warrant No. 842 for the sum of $60, by which sum the judgment against said Gor-man was credited; that the defendant has failed and neglected to pay the said warrant or voucher, or any part thereof, though often requested to do so.

To this complaint defendant interposed a general demurrer, which was sustained by the court, and, plaintiff failing to amend, judgment was rendered in favor of defendant for costs.

The action of the court in sustaining the demurrer is substantially the only assignment of error relied upon in this case.

It appears from the complaint that the procedure had against the defendant was in the nature of garnishment, and, as under the law of this territory the defendant is a quasi public corporation, it is urged by defendant that it could not be made subject to proceedings in the nature of attachment or garnishment. This position is conceded by counsel for plaintiff, but it is insisted on behalf of plaintiff that it was not a garnishment, but that the sheriff levied the execution upon the warrant or voucher, which at the time was the property of Alice Gorman. If this insistment be true, and had been sufficiently alleged in the complaint, it might be material and of some avail; but conceding that it was a levy upon the voucher, and that the fact is sufficiently pleaded, it still seems to us that this would not entitle them to recover against the defendant, for the reason that it appears upon the face of the complaint that Alice Gorman, the judgment debtor, had never received or accepted the voucher, nor had it ever been issued or delivered to her. It was simply written out by the clerk of the school board in her name, and was subject to be revoked before delivery by the action of said .school board.

We are therefore clearly of the opinion that the voucher in question-had never become her property, and hence a levy upon it could fix no liability on the defendant. Whatever property ■existed in said voucher was in and under the control of the school board.

This view is fully maintained on principle, and also by a well-considered case, the facts of which are almost identical with the case at bar, handed down by the supreme court of Wisconsin, reported in 5 N. W. Rep. 912, in the ease of Merrill v. Campbell.

We have not discussed, nor is it necessary to pass upon, the • question of the exemption of the defendant corporation from .garnishment proceedings, for the reason that it is conceded by counsel for appellant that this proceeding was not of that character; but he contends that it was a levy upon choses in action, instead of a proceeding in the nature of garnishment. This doctrine has, however, been upheld by many of the courts of the .states of the Union on the ground of public policy, among which we cite the following cases and authorities: 1 Dill. Mun. Corp. § 101, and notes; Drake, Attachm. c. 22, § 494; Freem. Ex’ns, 133; Clark v. School Com'rs, 36 Ala. 621; Ross v. Allen, 10 N. H. 96; Stephens v. Harper, 59 Ill. 21; Millison v. Fisk, 43 Ill. 112; Morgan v. Smith, 4 Minn. 104, (Gil. 64;) School-Dist. v. Gage, 39 Mich. 484; McLellan v. Young, 21 Amer. Rep. 276, 54 Ga. 399; Buckley v. Eckert, 3 Pa. St. 386; Casey v. Davis, 100 Mass. 124; Dunlap v. Peterson Fire Ins. Co., 74 N. Y. 145.

The judgment is in all things affirmed.

All the justices concurring.