Opinion
Decided January 20, 1930.
Garnishment — Judgment creditor's proceedings against debtor's month to month tenants — Garnishees' advance payment of rent, prior to appointment of receiver, bars recovery — Attaching creditor's rights no better than debtor's.
Where a judgment creditor brought garnishment proceedings against month to month tenants of his debtor's apartment, garnishees' payment of month's rent in advance, and prior to the appointment of a receiver under a mortgage on the premises, bars a recovery in garnishment by the attaching creditor, who has no better rights than his debtor.
ERROR: Court of Appeals for Cuyahoga county.
Mr. A.W. Bell, for plaintiff in error.
Mr. Thomas M. Kennedy, Jr., for defendants in error.
This cause comes into this court on a petition in error to the municipal court of the city of Cleveland; the purpose being to reverse a judgment rendered in favor of the defendants in error, Nathan Lertzman and others, against the plaintiff in error, A.W. Bell, plaintiff below.
It seems that the defendant in error Lertzman had at one time been a client of Bell, who is plaintiff in error, and that Bell had earned attorney fees in the amount of $100, for which defendant in error gave him a cognovit note. After the note became due, Bell took a judgment on said note — the face of the note together with interest — and, learning that the defendant had become the owner of an apartment house, found the names of certain tenants who were living in said apartment house; and on the 27th of July of the year in question Bell issued an order of garnishment, and brought several of the tenants into court to answer whether they owed any money or not.
From the record and arguments of counsel we learn that the defendant had been the owner of this apartment house, but owned it for the space of one month only, and that was the month of July of the year in question. Apparently he was not very successful as an owner of apartments, for on the 25th of July an application was made by the loan company that held the mortgage upon the apartment house for a receiver, and on the 29th of July a receiver was appointed to take possession of the property and collect the rents.
From the record and arguments of counsel we also learn that every tenant in the building was a month to month tenant; that on the 27th of July, when the order of garnishment was issued, and the tenants in question were sought to be brought into court, they had paid their July rent; and that, before any more rent became due, the court of common pleas had appointed a receiver for the apartment house and ordered him to collect the rents. However, in response to the order of garnishment issued in the municipal court, the various tenants that had been served appeared in court, and some of them answered that they owed money to the defendant in error; and I believe the total amounted to more than enough to pay the plaintiff's claim. But these answers were amended after the parties learned of the appointment of a receiver.
The answers were filed either orally or in writing on the 8th day of August, and at that time, no matter what the tenants answered, they did not owe Lertzman any money, and it was made to appear to the court before whom the matter was heard that the receiver had been appointed to take possession of the property from the 29th of July, and that there were no rents due Lertzman before August 1st, as the July rents had all been paid, so far as these garnisheed tenants were concerned. The proceedings in aid of execution were therefore dismissed, the court holding that the money that was sought to be attached was not the money of Lertzman, but of the receiver, under the order of the common pleas court. It is to reverse that judgment that error is prosecuted here.
Considerable learning has been expended and much industry shown by counsel for the plaintiff, who is the plaintiff himself, and we sympathize with him that he is not able to collect a fee which he probably earned in the first place, but which he surely earned in his efforts to collect, but, unfortunately, none of the cases that he cites are in point. We at once concede that, where a contract has been entered into which will result in the earning of money in the future, even though not yet due, it has a potential existence so that it is subject to attachment, and that is as far as any of his cases go. Undoubtedly, if in this case, the tenancy having started July first, the rent was not to be paid until the end of July, an attachment during the month of July would reach that money. But that is not the situation here. Each tenant was a tenant from month to month, and they owed no money on July 27th, and the tenancy might have terminated, either by the action of the landlord or by their own voluntary action, on August 1st, by simply vacating the property, and the only contract that there was was the contract for the current month after the tenancy had started for that month.
Now before the new contract of tenancy began on August 1st the ownership of this property had changed for all practical purposes. It was no longer in the hands of Lertzman, but in the hands of the court, through its receiver, and the receiver was directed and ordered to collect these rents; and so, whatever the answer might have been of these garnisheed tenants, the fact remained that Lertzman had no interest in this money, and could not himself collect it, and the attaching creditor could get no better right than the debtor had, and, the debtor having no right, the attaching creditor surely could not get one. Under the order of the court of common pleas, the debtor, the defendant in this action, had no right to this money, and therefore, no matter what the tenants answered, they could not take away the money that was in the possession of the officer of the court, whose duty it was to collect it.
Therefore we can see no error in the judgment of the court below, and the judgment will be affirmed.
Judgment affirmed.
LEVINE, J., concurs.
SULLIVAN, J., not participating.