Barnes v. Hays

Opinion,

Mb. Chief Justice Paxson:

This case was very obscurely stated, yet we gather from the paper-books that the child, Sarah Golda Hays, was entitled to a small legacy under the will of her grandfather, S. W. Reagle, deceased; that before the payment of the money, viz., on April 28, 1883, the said- Sarah died, by reason whereof her •father, R. W. Hays, became entitled to her share, subject of course to any legal claims against it in the hands of her administrator. On March 18, 1886, P. P. Barnes, plaintiff below, issued an attachment execution against R. W. Hays, defendant, and the administrators of S. W. Reagle, as garnishees. This attachment, doubtless, bound the interest, if any, of Hays in the Reagle estate. On September 24, 1886, E. W. Echols, defendant below, was duty appointed administrator of Sarah Golda Hays, deceased. On October 15, 1886, the administrators of Reagle’s estate, and the garnishees in the attachment, on their own petition, paid into court the sum of §140.88, accruing to the estate of Sarah Golda Hays. On the same day the plaintiff in the attachment moved to take this money out of court. This rule was refused, but without prejudice to his right to the fund. On November 24, 1886, Echols, as administrator of Sarah Golda Hays, petitioned the court for leave to take out the money, and the rule was made absolute, the court saying, according to the record which is before us, “the administrator taking the fund subject to the rights of the attaching creditor.” All this, if not entirely regular, could have done no harm.

The money due from the Reagle estate to that of Sarah Golda Hays was payable to her administrator, and it is difficult to see how it could be reached by an attachment against R. W. Hays, without making her administrator a garnishee. This was done in the court below, and was done in a summary way. There was no new attachment issued, with a summons served upon E. W. Echols, administrator, as garnishee, but, in the somewhat quaint language of the learned counsel for the plaintiff in error, “ the administrator and the fund were injected backward into the teeth of the dead writ; ” in other words, the court below, on November 14, 1887, on motion of plaintiff’s attorney, added the name of E. W. Echols, administrator of the estate of Sarah Golda Hays, “as defendant in the above case.” By the above case I understand to be meant the attachment suit commenced nearly two years before. Thus, by a stroke of the judicial pen, Mr. Echols was made a defendant, not a garnishee, in the attachment execution referred to. There was no process served upon him, not even a notice, so far as the record shows; and on December 13, 1888, on motion of plaintiff’s attorney, judgment was entered against E. W. Echols, administrator of the estate of Sarah Golda Hays, bj^ default, for want of an affidavit of defence, and the judgment liquidated at the sum of §142.85. The court subsequently refused to strike off this judgment. Mr. Echols thus finds a personal judgment entered against him in a proceeding between other parties, without service of any legal process against him. It is almost needless to say that sirch a proceeding cannot stand.

The order of November 14, 1887, by which Mr. Echols was made a party to the attachment, together with all subsequent orders, are reversed and set aside. The fund in his hands as administrator will of course be paid hereafter to the person or persons who succeed in showing that they are legally entitled to it.

Orders reversed.