WHEATLEY vs. SHOBE

WHEATLEY vs. SHOBE. Sixth District Court for Sacramento Co., Feb. T., 1858. Gaenishee — Intervention. S. being indebted to W.‘, the latter drew an order upon him, payable “ to bearerW. was also indebted to H. W. commenced an action against S. for the recovery of his debt. S. set up that he had been garnisheed by the creditors of H., for whose benefit he avers the order was originally drawn. The creditors of H. also garnisheed-W., and filed a bill of intervention in “ W. v. S.,” claiming that they had a right to the specific proceeds of the judgment. Held, that the defense set up by S. was insufficient, and that intervenors could not maintain their claim. The requisite facta are fully referred to. in the opinion. Tried by the court, a jury having been waived. [MAJORITY — Botts, J.] Botts, J. — The'plaintiff alleges that the defendant is indebted to him in the siim of $236 60. The answer admits the indebtedness, but alleges that the plaintiff .drew an order on him, the defendant, for the said sum; that the order was payable to “ bearer,” but was intended for one Sowell; that defendant never accepted said order, and that he has been garnisheed by creditors of Sowell. This clearly constitutes no defense to plaintiff’s demand, and therefore the demurrer to to the answer must.be sustained, and judgment rendered for the plaintiff.. But Wilcox & Co. file a bill, praying to be allowed to intervene, setting up a prior right to the. debt originally due from Shobe to Wheat-ley. They allege that they are judgment creditors of SoweU ; that Wheatley, being indebted to SoweU, drew an order on Shobe in favor of Sowell for the amount of the debt due from Shobe to Wheatley, and that the said order wat accepted by Shobe ; ^nd that both Shobe and Wheatley were served by notice of garnishment of their claim against Sowell. If these allegations be all true, I do not see thattheiy establish an equitable title in the intervenors to the specific proceeds of this judgment. In the first place, the order by Shobe may have been returned to Wheatley by SoweU, in consequence of the non-payment by the acceptor. In that event, it is true, Wheatley would have still remained indebted to Sowell, and may have become liable to Sowell’8 creditors by process of garnishment served upon him; but it is not, it seems to me, in this suit that the claim of the intervenors against either Shobe or Wheatley is to be determined. If either Shobp or Wheatley was indebted to Sowell at the time of the garnishment, there is a process, and a very summary one, by which the intervenors can obtain judgment against them, and it is to that remedy that the petitioners must be left. The petition of the intervenors is denied.