Opinion
Decided May 5, 1930.
Attachment — Third party's right to intervene waived by trial for right of property — Attachment fails where plaintiff relies on affidavit and defendant introduces counter testimony.
1. In attachment proceedings, third-party claimant's failure to obtain leave of court to become party defendant was waived by proceeding to try his right of property.
2. On motion to dissolve attachment, where defendant introduces counter testimony, and plaintiff relies solely on affidavit, attachment must fail.
ERROR: Court of Appeals for Cuyahoga county.
Messrs. Robbins, Sogg Woodle, for plaintiff in error.
Mr. Raymond J. Logan, in propria persona.
This cause is here on error from the municipal court of Cleveland, wherein judgment was rendered on October 16, 1929, in favor of Raymond J. Logan, a third party claimant, who asserted by proper pleading that certain moneys garnished under attachment proceedings commenced by the plaintiff, the McCray Refrigerator Sales Corporation, against one Robert L. Osborne, belonged to him (Logan) by virtue of an assignment made on June 12, 1929, by Robert L. Osborne. The money in question, according to a letter dated October 1, 1929, came into the possession of counsel for plaintiff in error from Walter E. Heller Company, of Chicago, whom counsel represented. The letter of October 1, 1929, from counsel to defendant, Raymond J. Logan, notified the latter that the sum was forwarded to counsel to be remitted to him for the Walter E. Heller Company, but the letter stated that counsel also represents the McCray Refrigerator Sales Corporation of Kendalville, Indiana, and that an attachment has been issued against the funds under a judgment obtained against Robert L. Osborne.
Thus it will be seen that the assignment from Osborne to Logan, as we observe from Exhibit A of the record, was executed June 12, 1929, and it further appears that the consideration for the assignment was an indebtedness for attorney fees. From Exhibit B, which is the letter from counsel's firm representing the plaintiff, to Logan, dated October 1, 1929, we see that the plaintiff, notwithstanding this status, sought to garnishee the funds so assigned to Logan, with the consent of Walter E. Heller Company, notwithstanding the fact that the money, after June 12, 1929, became the property of Raymond J. Logan.
A motion to dissolve the attachment was heard, but apparently not disposed of, as appears by the transcript, and later a trial for a right of property was had by virtue of the claim of Logan, based upon the exhibits noted herein.
It is urged that this was not a proper procedure. It does not appear from the transcript that defendant Logan got leave of court to become a party defendant, or a party to the proceedings in any manner, but this remission was waived because counsel in court proceeded to try the question as to the right of property by virtue of the pleading of the third party, so called. This raised the question as to the truth of the affidavit for the order of attachment and garnishment, because as a basis for the garnishment, to collect upon the judgment against Osborne, the moneys attached necessarily must have been the property of Osborne. Therefore the question arose as to whether the money was Osborne's or Logan's, and from the testimony in the case, and especially the exhibits, we find that by the status which existed prior to the garnishment and the date of the hearing, October 16, 1929, Osborne had parted with the money by assignment to Logan, and Logan had absolute ownership therein; and, consequently, the statement in the affidavit for garnishment that the money belonged to Osborne had no foundation in fact, and consequently the attachment of the money had no merit in law.
The weight of the testimony is the vital issue after all. It appears by the record that, when the third party claimant rested his case, then and thereupon plaintiff rested, and thus, with the exception of the affidavit, there was nothing to controvert the statement as to ownership as testified to by Logan. It is a well-settled proposition of law that, where there is counter testimony in a motion to dissolve an attachment, in the absence of further testimony on the part of the party attaching, the claim for attachment must fail. The reason for this is that the assertion of fact in the affidavit is mainly for the purpose of securing the attachment, and not for the purpose of creating testimony as to any issue of fact that may arise thereon, unless additional testimony is offered.
The trial was in the nature of a hearing upon a motion to dissolve. At any rate, the trial proceeded upon the theory that the issue was the ownership of the funds, and upon that issue the court below found for claimant, Logan, and in this judgment of the lower court we unanimously concur.
Judgment affirmed.
VICKERY, P.J., and LEVINE, J., concur.