Kean ex rel. Ridgely v. Doerner

Stone, J., delivered the opinion of the Court. The appellant Kean had a judgment against Weyand Doerner, and upon this judgment he issued an attachment, by way of execution, and had it laid in the hands of Miltenberger, garnishee. The attachment was laid upon certain money alleged to be due from Miltenberger, the garnishee, to Weyand Doerner. George Doerner appeared in the case and filed a petition in the ordinary form, claiming that the money so attached, was due to him and not to Weyand Doerner.

Issues were joined, and the case was tried before a jury, who found the money so attached to be the property of George Doerner, the claimant, and Kean has appealed. Without going into a statement of the mode in which the questions were raised, it is enough to say that this case depends entirely upon two questions. The first, is whether a claimant of money attached in the hands of a garnishee, has the right to come in by petition and claim the money, and have his right to it decided by a jury, and the second is whether the Act of 1876, chap. 285, points out the only mode by which a claimant can now come in, and establish his right to property attached1, or whether this Act is only an additional remedy to those already existing ? As to the first of these questions, it is admitted that independent of the Act of 187 6 a claimant may come in, as. this one has, and claim specific property.

But thé appellant by an ingenious argument has sought to draw a distinction between specific property and money, and while admitting that it may be done in the one case, denies the right to do so in the other. The right 'of a claimant of property to - come in, and assert and prove his right to it, when it is wrongfully seized, rests upon the broad ground, that no man should ⁴⁷⁷ be deprived of his property without a hearing, if he desires to be heard. The garnishee may, and in practice generally does, assert for him every claim that the owner would or could assert for himself. But this does not preclude the owner himself, if he so elects, from taking control of, and managing the case, in which he, and not the garnishee, is really interested.

A hostile or treacherous garnishee might deprive the claimant of property, legally and justly his, by failing to make defence at all, or by making it in a careless or indifferent manner. It would be a very inadequate compensation to allow the true owner, after his property is gone, to permit him to bring suit for damages against, perchance, an insolvent garnishee, or plaintiff, when he stood ready at all times to prove his rights and prevent the injury and wrong. But if the claimant has the unquestionable right to come in and be heard in behalf of his specific chattel, why should he not be heard in behalf of his money. If he be allowed to come in and claim his horse, worth perhaps