Opinion
Writ of Error to the District Court of the Tenth Judicial District, County of Yuba.
The plaintiffs in error, Mark Brummagim and John A. Paxton, were garnisheed by the defendants in error in a number of suits against Adams & Co. They were summoned to answer interrogatories touching moneys in their hands, belonging to Adams & Co. Their answer disclosed that they had in their hands the sum of $ 75,000, for which they had issued their certificates of deposit to A. A. Cohen, as Receiver--which sum they supposed belonged to Adams & Co. That the deposit was made on February 23d, 1855, at the time of the suspension of Adams & Co. by persons in the employ of that house; that the certificates had been presented but not paid, owing to the attachments of the defendants in error. The record is very voluminous, but it is only necessary, under the decision of the Court, upon the writ of error, to state the action of the Court below. After the examination of the plaintiffs in error, and of witnesses, the Court, on the application of the defendants in error, entered an order which, after reciting the previous action of the Court, etc., is in these terms: " Now, therefore, it is ordered that the said Mark Brummagim and John A. Paxton, copartners as aforesaid, pay forthwith to the Sheriff of Yuba County, California, the aforesaid sum of seventy-five thousand dollars. And the said Sheriff is hereby commanded, in the name of the 'People of the State of California,' and in obedience to this order, to demand and receive forthwith, from the said M. Brummagim and John A. Paxton, the full sum of seventy-five thousand dollars, and to receipt to them therefor; and further ordered that the Sheriff is commanded to retain said sum of money for the benefit of the plaintiffs as creditors of Adams & Co., and hold the same subject to the further order of this Court."
M. Brummagim & Co. refusing to pay the money over to the Sheriff, on application of the defendants in error, an attachment for contempt was issued and Brummagim and Paxton were committed for contempt, whereupon they sued out a writ of error.
COUNSEL
The errors assigned by the counsel are numerous, and supported by a very full brief, but as the decision of the Court is upon only one point, it is unnecessary to report them.
Field & Swezy, for Plaintiffs in Error.
No brief on file for Defendants in Error.
JUDGES: The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray concurred.
OPINION
HEYDENFELDT, Judge
In the case of Smith v. Hutchinson, Green & Co. decided at the January term, 1855, it was said: " The whole proceeding of the District Court was irregular. It was the duty of the Court simply to render a judgment against the garnishee for the amount found due, and the order to pay the same into Court was improper."
That opinion is decisive of the order in the present case. It is therefore reversed, and the cause remanded.