Nelson v. Stull

The opinion of the court was delivered by

Cunningham, J.:

The first question which confronts us in this action is whether, under our garnishment laws, an executor or administrator may be charged as garnishee in respect to funds in his hands belonging to an heir or legatee, in cases where the estate has not been fully settled and where no order of final distribution has been made. Both parties to this action agree that this is substantially the color which the question assumes ; for while Nelson was summoned as garnishee in his individual capacity, and not as executor, it appears that he had possession of no funds in his individual capacity, and the order of the court went further and directed that the sheriff should demand, and had a right to receive, from the estate of Christian Nelson such of the moneys, property and effects which, under the provisions of the will of said Christian Nelson, would be the share of Emma C. Davis. Viewed in this aspect, the question is, Under our garnishment law, may funds in .the hands of an executor or administrator of an estate be reached by a garnishment proceeding in an action against a distributee, before' an order of distribution has been made, and while' the estate remains unsettled ? Many authorities are cited to sustain both sides of the contention. It is laid down in the American and English Encyclopedia of Law, volume 14, second edition, page 828, that the great weight of authority is that executors and administrators cannot be thus charged. If we were to construe the language of the statute literally, it would seem to require the contrary holding, for its language is :

“Any creditor shall be entitled to proceed by garnishment in the district court of the proper county against any person . . . who shall be indebted to or have any property, real or personal, in his possession or under his control belonging to such creditor’s debtor.” (Gen. Stat. 1901, §4634.)

The garnishee in his answer is required to disclose whether he holds title or possession to personal property, effects or credits belonging to the defendants, or in which they are anywise interested. We do not, however, find ourselves at liberty to enter upon a consideration. of the proper'construction of this statute, or a discussion of the reasons given by the courts in their holdings.

Our garnishment statute was adopted in 1889. It was taken practically verbatim from the law of Wisconsin. The supreme court of that state, in the case of The J. I. Case Threshing Machine Co. v. Miracle, Ex’r, Garnishee, 54 Wis. 295, 11 N. W. 580, decided in 1882, had this exact point before it, and there held :

“An executor or administrator is not subject to garnishment before a final order for the distribution of the estate is made; and w;here he is summoned as garnishee before the making of such order, judgment cannot be taken against him therein after the order is made. Whether he is subject to garnishment after such final order is not here determined.”

Under the rule that, where a state adopts a law from another state, it adopts as well the construction of that law which the courts of that state have put upon it, we must hold that this is not an open question with us, and until further legislation is had in this state an executor or administrator cannot be charged as garnishee in an action against an heir or devisee, in respect to property or effects in his hands as such executor or administrator, and before a final distribution of the estate has been made.

There is, however, a question in the case which seems to us to reach deeper than the one of which we have spoken. As has been said, no pleadings were filed except the affidavit for attachment and garnishment by the plaintiff, the affidavit denying all liability filed by Nelson, and the notice given by the plaintiff that he elected to take issue on the answer of the garnishee, Nelson. However, the whole case proceeded upon the theory that the conveyances under which Nelson was holding, and claimed a right to hold, were fraudulent. It was on this theory that the case was tried, submitted to the jury, and verdict found. It was substantially “an action for relief on the ground of fraud,” and as such must have been brought within two years. Now, as the evidence showed that these conveyances were made more than two years before the bringing of this action, the plaintiff must show that he had no knowledge of the fraud, in order to take his case out of the statute of limitations. (Young v. Whittenhall, 15 Kan. 579.) This he did not do; hence we think he failed to establish his right to recover in the action. This infirmity in the evidence was pointed out by Nelson by demurrer' to the evidence of the plaintiff, which demurrer was erroneously overruled by the court.

It may be objected that this was not an action for relief on the ground of fraud; that it was simply a proceeding against a garnishee ; but-legal proceedings, like things, are what they are in essence and not what they may be named. The essential thing in this proceeding was that the plaintiff desired to be relieved from the legal consequences of the execution of these conveyances, and for this purpose he charged that they were fraudulently made. That he charged this by his evidence, rather than by a formal petition, could make no difference in the nature and essence of his action, nor limit the right of the party against whom the relief was sought to urge the bar of the statute of limitations.

It is suggested, however, by the defendant in error, that this action was brought in less than two years after the notes became due. We are unable to see how this would affect the issue. An action might have been brought even before the notes were due and attachment had in such action. An action for relief on the ground of fraud must be brought within two years from the commission or discovery of the fraud. That the debt for the recovery of which the plaintiff sues was not due within that time, does not serve to extend this period of limitation.

We are of the opinion that the defendant Stull was not entitled to the cancelation of these conveyances after the expiration of two years from their ^execution without showing that he discovered their fraudulent character within the period of two years before the action was commenced, and as he did not so show, the court was in error in granting him the relief which it did.

The judgment of the court below will be reversed, and the case will be remanded for further proceedings.

Johnston, Pollock, JJ., concurring.