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Colo.) BROTHERHOOD LOCOMOTIVE FIREMEN & ENGINEMEN v. MOHENRY

277

A. C. McChesney, of Trinidad, for plaintiff ment of dues or otherwise, as the secretary in error.

J. C. Bell, of Trinidad, for defend- testified he had mailed to him there; that ant in error.

at the time deceased brought these receipts

home, which was in November, 1912, he told HILL, J. This writ is to review a judg- his mother that that made him good until ment for $1,500 in favor of the defendant in January 14th. error upon an insurance policy issued by the There is also testimony showing a payment plaintiff in error upon the life of Walter Mc-of $10 for him by the mother January 15, Henry, a son of the defendant in error, who 1912, and $25 by the deceased November 11, died January 21, 1913. The assignment urged 1912, when the receipts were issued. There is that the verdict of the jury was manifestly was also a letter bearing date October 2, against the weight of the evidence. The con- 1911, written by the father of the deceased to tention is over whether McHenry paid his Stewart (the financial secretary of the local assessment for the month of December, 1912. lodge), inclosing $10 to apply upon the son's It stands admitted that, if this payment was assessments. October 3, 1911, Stewart remade, his mother is entitled to recover; oth- plied as follows: erwise not. The evidence is conflicting. To “Find herein receipts to the amount of $9.25. establish this payment the mother produced There being a deposit of 75c. to apply on next

time." in evidence receipts for the months of November and December, 1912. It was proven

The plaintiff claims this meant that he and is admitted that they are upon the regu- was then paid up to that date with 75 cents lar blanks of the association sent to the local to apply on next time, as the letter states. If office by the general office; that they were this is correct, then the amount admitted to signed by the proper officer, whose signature have been paid thereafter was more than sufis admitted; that the receipts upon their face ficient to pay all the assessments up to the purport to be receipts for the assessments for time of his death. There is also testimony these two months. There is no dispute con- that soon after the payment of October 3, cerning these matters. Counsel in his reply 1911, Stewart returned to McHenry 75 cents, brief says:

which the plaintiff claims is another fact “We admit that Plaintiff's Exhibits A and tending to prove that he was then paid up to B, unexplained, would be prima facie evidence date. Upon cross-examination, when it was that the deceased, Walter McHenry, had paid pointed out to Stewart that his books showed his assessments for the months of November this return, he admitted it, and in explanaand December, 1912."

tion says: On cross-examination, by deposition, Mr. Hawley (the general secretary and treasurer entry mean? It means I returned him 75c. I

"10/14/11. Returned 75c. What does that of the association) was requested to take two notice here on 10/3/11 he paid some months, blank receipts, such as were used in Novem- and then this one he paid 75 cents too much, ber and December, 1912, and punch them to and next day I gave him back his 75 cents.”. show the payment made for assessments dur. The plaintiff claims that this explanation ing. these months and attach them to his does not explain. There is also testimony deposition. The copies thus furnished are in that soon after the $25 payment of November the same amounts and otherwise similar to 11, 1912, to wit, on November 19th following those which it is conceded were delivered to (when the deceased attended a meeting of the the deceased by the proper officials of his lodge), Stewart, the financial secretary, relocal lodge.

turned to him 50 cents, presumably upon acThere was also testimony by others famil- count of another overpayment. It is concediar with such receipts that they were fur- ed that, if Stewart's letter of October 3, 1911, nished by the Grand Lodge to the financial meant that the deceased was then paid up secretary of the local lodge, who delivered to that date with 75 cents to apply on next them to the deceased; also that a member time, as the letter states, the amount admitcould not obtain them except upon the pay- ted to have been paid thereafter was more ment of his assessments; that the password than sufficient to pay all assessments up to of the lodge changes quarterly, and that a the time of his death, and the plaintiff claims member expelled for nonpayment of dues this fact is established, not only by this letcould not attend lodge thereafter; that ex- ter and the receipts thereafter given, but by pelled or suspended members and the public the return of the other 50 cents to the degenerally cannot attend the meetings of the ceased during the month of November, 1912. lodge when the ceremony of initiating a mem- The testimony upon behalf of the defendber is being conducted; that during the month ant includes the deposition of the witness of November, 1912, the deceased attended a Hawley, general secretary and treasurer, as meeting of his local lodge and participated in to what the records in his office show, which initiating other members; that he lived with is to the effect that the last remittance rehis mother at Trinidad and received his mailceived at the general office, account assessat a boarding house conducted by her; that ments of McHenry, was for the month of his mother looked after his mail, and that July, 1912, received July 19th; that in the at no time during several months preceding month of August be received notice from his death did he receive any letters from the Stewart, the financial secretary of the local officials of the local lodge calling for the pay-lodge, that McHenry had made default in the payment of the assessment against him, and some further words over it. The president that McHenry was expelled from the associa- did not testify. The witness Miller, who was tion August 2, 1912, for the nonpayment of being initiated at the time, testified that Turassessment for that month, and that he was ner was not present and did not come up to never reinstated. This testimony is accom- the lodgeroom until after the ceremonies panied by copies of the by-laws relating to were over, or nearly so. Turner is also consubordinate lodges, which gave to it this tradicted by Leslie McHenry, a brother of right upon the nonpayment of assessments, the deceased, who was present and being inietc.

tiated at the time. His testimony is to the Arthur Stewart, the financial secretary of effect that Turner was not there. The witthe local lodge, testified that McHenry hadness Stewart admits that a this meeting he been a member of the local lodge; that returned to the deceased 50 cents; that this he was usually in arrears in paying his as- was done in his official capacity. Stewart sessments; that, as a matter of accommoda- further testified that the deceased knew he tion, the lodge would advance his assess- was in arrears, asked him what it would ments and send them to the Grand Lodge; cost to be reinstated, and was told; also that that the local lodge remitted for him for 12 he had repeatedly mailed him letters to Trinimonths, August, 1911, to July, 1912; that he dad demanding dues, etc. This was denied had paid no part of these assessments; that by the mother; that is, that any such letters the local lodge refused to advance his assess- were ever received. The receipts for the ment for the month of August, 1912, and that November and December, 1912, assessments, on August 2, 1912, he was expelled from the held by the deceased, were for $2.25 each, and order; that on the 11th of November, 1912, stated they were in full for these months. after his expulsion, he paid to the lodge 11 Stewart testified that the dues for the months months' back assessments, which it had ad- of November and December, 1912, were $2.50 vanced for him; that the receipts offered in per month, but for the same months during evidence by the plaintiff were given for the 1911 were only $2.25 per month. This testiamounts in arrears for the months of No-mony is in apparent conflict with that of Mr. vember and December, 1911, which the lodge Hawley, the general secretary, who, in markhad advanced for him; that other receipts, ing the receipts as to how they would read for which the witness produced stubs, had were they given for November and December, been issued showing payments on the same 1912, marked them for the sum of $2.25 each, date and were for the months of August to and not $2.50, as testified to by the witness December, 1911, and from January to June, Stewart. Plaintiff claims that Stewart's 1912. He produced his monthly statements books also show that the assessments for to confirm his testimony, duplicates of which some other members for December, 1912, were forwarded to the General Secretary, were $2.25, and not $2.50, as testified to and also other books, to show that no assess by Stewart. We think this latter immaments had been made against McHenry after terial; for, if we understand Mr. Hawhis expulsion, August 2, 1912.

ley's testimony, a member's assessments to [1] The records of the local lodge were the Grand Lodge depends upon the amount produced, which disclosed a meeting August and classification of the insurance carried, 12, 1912. They were kept by'a Mr. Tom Tur- and in this respect his testimony does not ner, and showed that at this meeting Stew- agree with the contention of his counsel, who art, the financial secretary, bad reported the claims that the $2.25 marked by him was inexpulsion of McHenry; Stewart testifying tended for the Grand Lodge assessment only. that he had notified the lodge of the delin- for the reason that he states the Grand Lodge quency. The plaintiff contends that the orig- assessment for a member carrying a policy inal record shown to the jury discloses that of the class and the amount Mr. McHenry's the portion referring to McHenry had been was would be $2 for the month of December, written in thereafter; that it was crowded 1912, and, having marked his copy $2.25, he in just over the signature of Turner, and that must have intended to include therein some Turner hunted his records in vain for anoth- thing more than the Grand Lodge assessment. er place therein where an entry of this There is also testimony of other witnesses, sort had been made after the close of the former officials and members of the lodge, entire business of the lodge, but was una. that, in case the transaction was as testified ble to find one. This, of course, was ques- to by Stewart, the receipt for the money paid tion for the jury to consider. The witness to the local lodge by McHenry for advanceTurner admitted that the deceased sat in the ments to him for Grand Lodge assessments lodge about the 19th of November, 1912, but would not have been the kind used at all, but claims that he called the attention of the would have been of another character; that president to the fact that he had been ex- the blanks for assessments are sent out for pelled and had no right to sit in the lodge; only one purpose, and are never to be used that the president simply said, “Oh, well, he for any other, viz., to be given for the pas. says that he is going to be reinstated again, ment of assessments only, and not otherwise. and he says his brother is being initiated, and [2] Many reasons are presented by each

dence."

ay sustains their respective contentions. We debtor of the payee in respect to the debt for can in a way agree with both, which is one of which it is given. the vital reasons why we should not disturb Cent. Dig. $$ 74, 97-101; Dec. Dig. Om51.]

[Ed. Note.-For other cases, see Garnishment, the verdict of the jury, even though we might have found otherwise in the first instance. 4. GARNISHMENT Om 232-EFFECT OF.

Defendant, after giving a check in payment This is specially true when applied to the of a debt, was garnisheed by creditors of a payee. receipts admitted to be genuine, which, in The check had already been indorsed over to connection with the other evidence, made for plaintiff. Both defendant and the bank on

which the check was drawn refused payment the plaintiff more than a prima facie case.

on the theory that payment could not be enAs stated by the Supreme Court of Illinois forced until the disposition of the prior suits. in Ennis v. Pullman Palace Car Co., 165 Ill. Held, that as the garnishee's liability in the at page 182, 46 N. E. 445:

case of a debt due from him is limited by his

liability to the defendant in the principal action, "It is true that a written receipt may be ex- whereby the latter has, at the time of the garplained by parol, but it is prima facie evidence nishment, a cause of action, payment of the of the facts recited in it; and, the evidence fur-check could not be denied until disposition of nished by it being of the highest and most sat- the garnishment proceedings, for the check, until isfactory character, its force can only be im- dishonored, was a payment of defendant's debt, paired by testimony which is convincing. The until which time the principal debtor in the garproof offered to explain it must be clear and nishment proceeding had no right of action unmistakable. It must be overcome, if overcome against defendant, and plaintiff could not recovat all, by a clear preponderance of the evi- er unless it was the legal holder of the obliga

tion. This line of reasoning is applicable here,

[Ed. Note. For other cases, see Garnishment,

Cent. Dig. 88 445-453; Dec. Dig. Om 232.] and whether or not it was satisfactorily overcome was a question for the jury to deter- Petition by the American Exchange Namine. It was submitted to that body under tional Bank of Duluth, a corporation, for a instructions to which no complaint has been writ of mandate, against the Superior Court made. Under such circumstances, the evi- of California, in and for the County of Los dence being conflicting, it is not the province Angeles, and John W. Shenk, Judge. Writ of this court to disturb the findings. Denver issued. T. & I. Co. v. O. & S. Ry. Co., 58 Colo. 313,

Davis, Kemp & Post, of Los Angeles, for 145 Pac. 707; D. & R. G. R. Co. v. Peterson petitioner. C. H. Brock and M. P. Frasier, Grocery Co., 147 Pac. 663; Bank of Brom- both of Los Angeles, for respondent. field v. McKinley, 53 Colo, 279, 125 Pac. 493; Denver City Tramway Co. V. Brumley, 51

CONREY, P. J. On petition for writ of Colo. 251, 116 Pac. 1051.

mandate. An action numbered B-16352 and The judgment is affirmed.

entitled American Exchange National Bank Affirmed.

of Duluth, Plaintiff, y, Title Insurance & GABBERT, C. J., and TELLER, J., concur.

Trust Company, Defendant, was filed in the superior court of Los Angeles county on Sep

tember 11, 1914, and is now pending. In that (29 Cal. A. 8)

action the plaintiff seeks to recover a sum of AMERICAN EXCHANGE NAT. BANK OF money due upon a check assigned to it by one

DULUTH v. SUPERIOR COURT OF CAL J. H. Constantine. This check was issued by IFORNIA, IN AND FOR LOS ANGELES the Title Insurance & Trust Company to COUNTY, et al. (Civ. 1848.)

Constantine on May 12, 1914, and was there(District Court of Appeal, Second District, Cal- tine to the plaintiff. The action was brought

after indorsed and transferred by Constanifornia. Nov. 17, 1915.)

against the defendant company after presen1. GABNISHMENT 123—RIGHTS OF PERSONStation of the check by the plaintiff to the GARNISHED.

Where writs of garnishment to reach the bank against which it was drawn and reproperty of a payee of a check were served both fusal of payment by that bank. The action on the drawer of the check and the bank on of plaintiff against the Title Insurance & which it was drawn, the reasons given by the Trust Company came on regularly for tria) bank for dishonoring the check are not available on June 3, 1915, counsel for the respective to the drawer. [Ed. Note.--For other cases, see Garnishment, the defendant moved the court for a stay of

parties being present in court. Thereupon Cent. Dig. 88 243, 248; Dec. Dig. @m123.)

proceedings in the action until final deter2. PAYMENT 21 - CHECKS LIABILITY OF mination of another action pending in that DRAWER.

By agreement a check may be taken in ab- court, numbered B-25383, and entitled Hersolute payment, in which case the drawer is bert Freston, Plaintiff, v. J. H. Constantine, liable only as an indorser, and not on the origi- Defendant. An order was made, granting nal debt. [Ed. Note.-For other cases,

said motion, and in accordance therewith the

see Payment, Cent. Dig. § 86; Dec. Dig. Om 21.),

superior court refused to proceed with the

trial of the case. The petitioner alleges that 3. GARNISHMENT Om51-DEPOSIT IN BANK-by reason of said order and action on the CHECKS-EFFECT OF.

A check is so far a payment that until dis part of the respondent, petitioner is unable honored the drawer cannot be garnisheed as a to proceed with its said action, and unless

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

relief be granted in this proceeding, the ac- , and garnishment notice therein served on the tion cannot be tried until final judgment shall Title Insurance & Trust Company and also have been rendered in the Freston Case. on the Farmers' & Merchants' National Bank,

[1-4] The motion of the defendant Title In- drawee of the check so assigned by Constansurance & Trust Company for stay of pro- tine to the petitioner herein, plaintiff in acceedings in the action against it was made-tion No. B-16352; that the refusal of the "on the grounds that the defendant in this ac- bank to honor and pay the check was solely tion has been served with notice of garnish- on account of said notice of garnishment ment in said case of Herbert Freston, Plaintiff, served on it. This matter is probably exc against J. H. Constantine, Defendant, as aforesaid, as will more fully appear by the affidavit traneous to the case presented for our decimarked 'Exhibit A' attached hereto and made a sion, since the motion for stay of proceedings part hereof."

in action No. B-16352 referred only to the The affidavit shows that the action of Fres- attachment proceedings in the Freston Case, ton v. Constantine was commenced on June 2, But even conceding that the garnishment in 1915; that a writ of attachment was issued the Lovell Case is a proper subject for conin that action against the property of the desideration here, we do not think that the refendant Constantine; that the writ, with no- spondent is in any better position on that ac tice of garnishment of the funds and proper-count. We apprehend that the reason given ty of Constantine and of any indebtedness by the Farmers' & Merchants' National Bank due to Constantine from the Title Insurance for not honoring the check and the notice of & Trust Company, was served on the com- garnishment served upon that bank are not pany on June 2, 1915; and that the Freston available to the defendant Title Insurance & action is still pending. The affidavit, which Trust Company as a ground for abatement of is by the secretary of defendant company, proceedings in the action against it. So far closes by saying:

as the notice of garnishment is concerned in “That it was sought by said writ of attach- the action of Lovell against Constantine, it ment and notice of garnishment to attach all is of no more importance with respect to the indebtedness, if any, of the defendant Title In- matters involved herein than is the garnishsurance & Trust Company to J. H. Constantine, ment notice in the Freston Case. under and by virtue of the identical check sued upon in this action."

"By agreement a check may be taken as ab

solute payment, and the drawer will then be The notice of garnishment as served by the liable only as an indorser, and not on the origisheriff upon the defendant company is at- nal debt. And a check is always so far pay. tached to the answer of respondent herein, the drawer cannot be garnisheed as debtor of

ment, until dishonored, that, after its delivery, and does not, in any way, pretend to describe the payee in respect to the debt for which the or identify said check. It purports only to check is given." "Morse on Banks and Banking give notice of attachment of all moneys,

(4th Ed.) 8 543.

“A check given by a debtor in settlement of goods, credits, effects, debts due or owing, or

an account is so far payment as to discharge the any other personal property belonging to de- drawer as trustee of the payee, service being fendant Constantine in the possession or un- made on him after giving the check but before der the control of the Title Insurance & presentment;, the check is payment unless dis

honored.” Id. $ 545; Getchell v. Chase, 124 Trust Company. If the obligation sued upon Mass. 366. by the plaintiff in action No. B-16352 is not

A garnishee's liability in the case of a a debt owing by the defendant company to debt due from him is grounded upon and is Constantine, the garnishment proceeding can limited by his liability to the defendant in furnish no reason for postponing the plaintiff the principal action whereby the latter has, bank in the enforcement of its demand. The at the time of the garnishment, a cause of subject matter of the complaint in the Fres- action, present or future, against him. ton Case has no relation whatever to the Drake on Attachment (7th Ed.) § 463. But check sued on in action No. B-16352. A

Constantine had no right of action against judgment in favor of plaintiff bank in its ac- the Title Insurance & Trust Company, for its Hon against the Title Insurance & Trust Com-check issued in his favor, either in payment pany cannot possibly be rendered, except up- or in conditional payment of its obligation to on a finding that the plaintiff bank is the him, was not dishonored while in his hands. legal owner of the obligation, to wit, the

Being of the opinion that the notices of check indorsed to it by Constantine. If it is garnishment relied upon by the respondent such legal owner, we can find no reason or herein were not sufficient to impose upon the rule of law under which it should be com- Title Insurance & Trust Company any liabil. pelled to postpone realization upon its de- ity affecting the check issued by it to Conmand until the settlement of a controversy stantine, we think that the court erred in between its assignor and some one claiming granting the motion for stay of proceedings to be his creditor.

in said action No. B-16352, and that the It is claimed by respondent that progress plaintiff therein is entitled to have the case in the action against the Title Insurance & proceed to trial and judgment the same as it Trust Company should be stayed for the fur- neither of said garnishments had been is. ther reason that, as shown by the answer in

sued. that action, another attachment in the case

Let peremptory writ issue. of one Lovell against J. H. Constantine (No.

(29 Cal. A. 41)

The facts of such default and of demand for KEISER v. LEVERING. (Civ. 1390.) possession and of refusal by the defendant (District Court of Appeal, Second District, Cal- are alleged, which the plaintiff averred are ifornia. Nov. 22, 1915. Rehearing De- to his damage in the sum of $835. Defendnied Dec. 21, 1915.)

ant demurred separately to each count of the 1. PLEADING 310- COMPLAINT - SUFFI

complaint on the general ground as to each CIENCY.

Recitals in a chattel mortgage incorporated count that it did not state facts sufficient to in the complaint in an action to recover posses- constitute a cause of action, and also on spesion as to the value of the property, will not cial grounds which we need not discuss. The supply the want of averments as to value in the demurrer was overruled, and an answer filed. complaint. (Ed. Note.-For other cases, see Pleading,

[1] In support of the general demurrer, deCent. Dig. 88 345, 944, 946, 947; Dec. Dig. efendant contends that the first count does 310.]

not contain any allegations showing the value 2. REPLEVIN 107-ACTIONS-JUDGMENT. of the demanded property, and claims that

Under Code Civ. Proc. $ 667, declaring that an allegation of such value is essential to the in an action to recover possession of personal

The plaintiff in this first property judgment shall be for possession of the cause of action. property or the value thereof, a judgment not count alleges the execution of the mortgage, in the alternative is not necessarily void, and a copy of which is attached to the complaint, may, under particular circumstances, be upheld. "and made a part hereof to all intents and

[Ed. Note.-For other cases, see Replevin, Cent. Dig. 88 424-428; Dec. Dig. 107.)

purposes the same as if recited at length

herein." The schedule of mortgaged articles 3. REPLEVIN m107-ACTIONS-JUDGMENT. In an action to recover possession of per

as set forth in the mortgage purports to give sonal property claimed under a chattel mort, the value of some of those articles. Allowing gage, the first count of the complaint averred this as an allegation of value, it would only the giving of a mortgage to secure a note and the amount due thereon, but did not aver the specify the values at the date of the mortgage value of the property claimed. The second and not as of the time of filing the complaint, count averred the execution of another note and unless we could assume that such values conmortgage that the value of the property was $1,- tinued unchanged. It is settled law that re200, while the sum alleged to be due on the seccitals in a contract incorporated in a comond mortgage was $359. It appeared that some of the property was subject to both mortgages.plaint will not supply the want of essential Code Civ. Proc. g 667, declares that in an ac-averments in the pleading. Thus, where the tion to recover the possession of personal erty, judgment may be for the possession or val- complaint alleged the making of a note set ue thereof in case delivery cannot be had. The forth by copy and the note recited that it judgment was for the property or its value, was "secured by mortgage of even date herewhich was stated as $970. Held, that as the with,” it was held that this did not amount first count of the complaint did not state the value of the property claimed, and as the value to an averment that the note was secured by was in excess of the amount of the indebtedness mortgage. Hibernia Savings & Loan Society set forth by the second count, the judgment v. Thornton, 117 Cal. 481, 49 Pac. 573; Hayt could not stand. (Ed. Note.-For other cases, see Replevin,

v. Bentel, 164 Cal. 681, 686, 130 Pac. 432. Cent. Dig. 88 424428; Dec. Dig. m107.)

[2, 3] The contention that a statement of

value of personal property in an action to reAppeal from Superior Court, Los Angeles cover possession thereof is essential to the County; John M. York, Judge.

cause of action seems to be based upon the Action by S. W. Keiser against J. H. Lever- fact that in such action judgment for the ing. From a judgment for plaintiff, and an plaintiff may be for the possession, or the valorder denying new trial, defendant appeals. ue thereof in case delivery cannot be had, Reversed.

and damages for the detention. Code Civ. Harry L. Dearing and T. C. Gould, both of Proc. 8 667. In the earlier cases it was held Los Angeles, for appellant. A. C. Galloway, to be imperative that the judgment be in the Wm. L. Jarrott, and James S. Jarrott, all of alternative form, and such judgments for posLos Angeles, for respondent.

session only, without providing for a recov

ery of the value thereof in case delivery CONREY, P. J. This is an action to re- could not be had, were reversed even at the cover possession of personal property. From instance of the defendant. Berson v. Nunan, a judgment in favor of the plaintiff, and from 63 Cal. 550; Stewart v. Taylor, 68 Cal. 5, 8 an order denying defendant's motion for a Pac. 605, and other cases. But this rule was new trial, the defendant appeals.

seriously questioned in Claudius v. Aguirre, By the first count of the complaint it ap- 89 Cal. 506, 26 Pac. 1077, and Erreca v. pears that the defendant made to the plaintiff Meyer, 142 Cal. 308, 310, 75 Pac. 826. The a chattel mortgage securing a note on which law seems to be that, while the judgment there was due at the time of filing the com- must ordinarily be in the alternative, yet "a plaint the sum of $835. The mortgage con-judgment that is not in the alternative is tained the usual provision entitling plaintiff not, however, void, and whether or not such to possession of the property with right of a judgment is even erroneous must depend sale to satisfy his claim whenever default upon the facts of the particular case." These should be made on the defendant's obligation. later decisions might be sufficient to support

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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