Summary
In Margarum v. Moon, 63 N. J. Eq. 586, 53 Atl. 179, creditor and debtor were both citizens and residents of New Jersey, and the debtor under the laws of this state was entitled to $200 exemption from process, and had not personal property of that value.
Summary of this case from Bigelow v. Old Dominion Copper Mining & Smelting Co.Opinion
10-10-1902
MARGARUM v. MOON et al. HOGAN v. CROOKS. MURFIT v. ROBBINS. HASSON v. ROACHE. CAPPELL v. SHADINGER. PREST v. WHITE. AYERS v. HOLTZ.
John A. Montgomery and W. M. Lanning, for complainants. W. Holt Apgar and W. D. Holt, for defendants.
Suit by Samuel J. Margarum against Walter E. Moon and others, and by Hogan against Crooks, by Murflt against Robbins, by Hasson against Roache, by Cappell against Shadinger, by Prest against White, and by Ayers against Holtz. On rules to show cause why injunction should not issue, restraining defendants from prosecuting attachments in West Virginia. Injunctions denied in all but the last case, and in that granted.
John A. Montgomery and W. M. Lanning, for complainants.
W. Holt Apgar and W. D. Holt, for defendants.
REED, V. C. Margarum, the complainant, resides in Trenton, is married, living with and supporting a family, and not owning $200 worth of personal property. He is a servant of the Pennsylvania Railroad Company, which company owes him for wages the sum of $100. Walter E. Moon, the defendant, is also a resident of this state. Margarum owes Moon the sum of $66.61. According to the affidavits, Moon has assigned his claim against Margarum to George O. Smith, attorney for the Delaware Mercantile Company, of Harrisburg. The assignee has attached in the courts of West Virginia the wages due to Margarum from the railroad company. The assignment is in terms absolute, the consideration for the same being that Moon was to receive one-half of any amount recovered by the assignee. It is obvious that the purpose of the assignee in obtaining the assignment was to evade the statute of this state which exempts property of a debtor from execution to an amount up to the value of $200. Mr. Moon, in his affidavit, disclaims any knowledge that attachment suits have been begun in the courts of West Virginia, or that he has any control over such suits. He denies that he has combined with the company or with Smith for the purpose of evading the statute laws of the state of New Jersey, or of depriving Margarum of his wages.
The jurisdiction of courts of equity to act in personam upon persons within their jurisdictions, by restraining them from using the courts of another state to execute an inequitable purpose, must be regarded as settled. 1 High, Inj. § 103. The injunction is not directed to the foreign tribunal, but to the party within the jurisdiction of the equity court. This judicial power was exercised in the case of Cunningham v. Butler, 142 Mass. 47, 6 N. E. 782, 56 Am. Rep. 657. In that case a citizen of Massachusetts, with knowledge that his debtor, residing there, had stopped payment, and anticipating proceedings in insolvency against him, made an assignment of his claim to a citizen of New York, without consideration; and the latter, before proceedings in insolvency were begun, brought an action upon the claim in New York, and attached property of the debtor there. The Massachusetts court, on a bill filed in equity by the assignee in insolvency, restrained the creditor from prosecuting the action to judgment; the court having found that the creditors still had control over such action. The exercise of the injunctive power in this case was held to be constitutional when the case came before the supreme court of the United States sub nomine Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. 269, 33 L. Ed. 538. In Keyser v. Rice, 47 Md. 203, 28 Am. Rep. 448, an injunction was supported, restraining a creditor residing in Maryland from further prosecuting in Piedmont, W. Va., an attachment by which he sought to recover wages due to his debtor, also residing in Maryland, from the Baltimore & Ohio Railroad. In Snook v. Snetzer, 25 Ohio St. 516, a similar exertion of the injunctive power by a court of equity was approved by the supreme court of Ohio. Creditor and debtor were residents of the state of Ohio. The debtor was head of a family, and wages due him from the Baltimore & Ohio Railroad were garnished in West Virginia. In both cases the proceedings in the foreign jurisdiction were instituted to evade the exemption law of the state in which creditor and debtor were domiciled. Mr. High states the doctrine to be that where a creditor and debtor are both citizens and residents in the same state, and the creditor institutes an action of attachment or garnishee proceedings in another state to reach credits due the debtor there, which would have been exempt from attachment or judicial process under the laws of the state where both parties were domiciled, the creditor may be enjoined from further prosecuting his action in the foreign state; it being regarded as an effort to evade the laws of the state of his domicile. 1 High, Inj. § 100. The cases in which the exertion of this injunctive power has been exercised to restrain such proceedings in foreign jurisdiction under such conditions are cited by Mr. High under section 105, supra, and by Mr. Waples under section 743 of his work on Attachment. Therefore, where it appears that the resident creditor is prosecuting a proceeding in another state for the purpose of depriving a resident debtor of the benefit of the exemption provided by the law of their domicile, the power of this court to restrain such proceeding seems to be plenary.
But it is said on the part of the creditor that, under attachment suits in this state, wages are not exempt; that only in proceedings to make a debt upon execution issued upon a judgment is the debtor entitled to an exemption of personal property of all kinds to the value of $200. But the fact that the debtor's wages might be attachable in this state is no answer to the debtor's right to an injunction; for the only way his property could be reached in this state would be upon an execution, as no attachment can issue against him so long as he remains a nonabscondingresident in this state. Nor can the wages he reached under the act of 1901 (page 372) upon an execution, except upon an order that such installment of said wages as a judicial officer shall determine shall be paid from time to time. This judicial discretion is vested in the judge, so that not all the wages shall be garnished, and the debtor be at once deprived of his wages, but that, in ease of the debtor and his familiy, only such portion of the debt shall be paid from time to time as will leave the debtor's family unimpoverished. This scheme is quite variant from the one put in operation in West Virginia.
It is also insisted that the complainant is not injured by the attachment, because he can, notwithstanding the pendency of that proceeding, recover his wages from the garnishee. The point is made that such an action here is not subject to a plea in abatement because of the pendency of such foreign suit While an action here will not be abated by the plea of the pendency of an action between the same parties for the same cause of action in another state, yet the domestic action may be stayed or suspended until the foreign action is discontinued. Kerr v. Willetts, 48 N. J. Law, 79, 2 Atl. 782. Where a defendant in such a suit has been subjected to garnishee process, it would be strange if the cow: would not take cognizance of a proceeding which had already fixed the debt in favor of the attaching creditor. Wallace v. McConnell, 13 Pet. 136150, 10 L. Ed. 95. The same objection against the injunctions which have been allowed in the cited cases could have been interposed in those cases, but were not; and, if they had been, they would have been properly overruled as utterly unsubstantial.
While I have found no answer to the complainant's prayer for injunction in the points already cited, nevertheless I am unable to see how a writ can go, in view of the defendant's sworn statement that he has made an absolute assignment of his claim, and has no control over the attachment proceedings being prosecuted in West Virginia. As this injunction is aimed at the resident creditor, and directs him to arrest the prosecution of the foreign action, it follows that it should appear that the prosecution of these proceedings is still under his control. In each case I have examined, where an injunction has been decreed, such was the condition of affairs. The assignment sworn to in this case seems to confer upon the assignee entire control over the attachment suits. It is, indeed, insisted that the consideration of this assignment, which is set out in the affidavit, shows that it is not really an assignment, but merely a power to collect. Even so; it seems to be a power of attorney, coupled with an interest which is irrevocable, by the creditor, at least, to the extent of the agent's interest in the claim. Therefore, as it presently appears that the defendant sought to be enjoined is powerless to control or arrest the attachment proceedings, no writ commanding him to do so can go.
There is, however, also a prayer that the defendant may be enjoined from receiving any of the money collected in the West Virginia suit. I am unable to see how an injunction in these terms will aid the complainant, unless the restraining order goes further, and directs the defendant to assign over to the complainant his right to receive the one-half of what may be collected in the said suit. The restraining order asked for would not prevent a recovery in the attachment proceedings of the whole amount due. A recovery in West Virginia would be a complete bar to another action by the defendant to recover his bill. The injunction restraining him from receiving his share of the money would merely leave the whole, instead of one-half,—the amount collected,—in the hands of the assignee. And if an order should be made that the one-half should be assigned to the complainant, the defendant would be apparently forever stripped of his right to recover any portion of his claim, and thus would be punished for his act of assigning, by the entire loss of his credit. An injunction in this case is refused.
In connection with the above case there were tried six other cases, namely, Hogan v. Crooks, Murflt v. Robbins, Hasson v. Roache, Cappell v. Shadinger, Prest v. White, and Aycrs v. Holtz. In the first five of these cases the facts are similar to those in Margarum v. Moon, and a decree in each of them will be advised similar to that in the decided case. In the last case (that of Ayres v. Holtz) the facts are unlike the other cases in the important particular that the answering affidavit of Mrs. Holtz does not deny, but admits, that the defendant's claim was placed in the hands of the Delaware Mercantile Company for collection, and says that she never made any assignment or pretended assignment to any one of the said claim. The facts in this case bring it within the class of cases in which the remedy prayed for by the complainant has been granted. I think an injunction should go, unless there is substance in the point, brought to the attention of the court, that inasmuch as the debt amounts to only $31.40, and so is below the $50 limit, this court will not entertain jurisdiction of the action. But the matter to be enjoined is the garnishment of the wages due to the complainant. Those wages amount to $60, and the inference is that this sum has been impounded by garnishee process, to await the final judgment of the court in the attachment proceedings. The amount involved, therefore, is over $50. And if the amount of the judgment to be obtained in the attachment proceedings is to be the standard of jurisdiction, there is nothing to show that the debt, interest, and costs in the suit will not amount to more than $50. In this case an injunction will be granted.