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Moran v. Joyce

Decided: March 5, 1940.

JAMES V. MORAN, PLAINTIFF,
v.
LOUIS C. JOYCE, JR., DEFENDANT



On rule to show cause.

For the plaintiff, John V. Moran.

For the defendant, Joseph Beck Tyler.

For the garnishee, Frank S. Norcross.

Donges

DONGES, J. By this rule to show cause plaintiff seeks an order directing the Camden Trust Company, as garnishee, to pay to the sheriff the proceeds of two accounts in that bank, one in the name of Louis C. Joyce, Jr., Settlement Trustee Account of $1,073.37, and the other in the name of Louis C. Joyce, Jr., Agent Account of $847.00, and in the alternative seeks the appointment of a receiver.

It appears that the plaintiff is the holder of a judgment entered October 31st, 1939, against Louis C. Joyce, Jr. Pursuant to a writ of execution, the sheriff levied on the aforesaid accounts. Thereupon Joyce, as agent and as trustee, made application to the Court of Common Pleas for a venire to summon a jury to determine whether the accounts were the property of Joyce individually or Joyce as agent and as trustee. A trial of this issue was had on December 26th, 1939, and the judge of the Court of Common Pleas directed a verdict in favor of the claimants and against the plaintiff herein. Judgment was accordingly entered. At the trial, the plaintiff objected to the jurisdiction of the Common Pleas to try the issue, but was overruled. It is stated that thereafter the bank paid out the funds on the checks of Joyce as trustee and as agent.

In the face of that judgment, the plaintiff seeks to obtain the remedies mentioned above by the rule to show cause.

I am of the opinion that the judgment of the Common Pleas is a bar to relief under this rule to show cause. The plaintiff here makes collateral attack upon the judgment of that court, but such attack may be made only on the ground of lack of jurisdiction.

The Common Pleas assumed jurisdiction under sections 2:26-122 et seq. of the Revised Statutes. Section 2:26-122 provides:

"When, by virtue of an execution issued out of any court of this state, goods or chattels are levied on or taken into possession by a sheriff or other authorized officer, and claim is made thereto by a person other than the execution defendant, by notice in writing delivered to the officer executing the writ, the officer shall immediately delay his sale thereunder for ten days, to enable the claimant to apply within the term to a

judge of the court of common pleas of the county wherein the goods and chattels were seized for a venire for a jury of twelve to try the right of the claimant to the property seized."

Plaintiff points out that this section mentions only a levy upon goods or chattels, and in the instant case the levy was upon bank accounts. At the time this section was adopted, rights and credits were not subject to levy in execution. Subsequently, in 1915, rights and credits were made subject to execution. I am of the opinion that the Execution act must be considered in its entirety and it was the intention of the legislature when it made rights and credits subject to levy to put them in every respect in the position of goods and chattels. To hold otherwise would mean that a third party claimant to rights and credits would not have the same remedy to enforce his claim as would a claimant to goods and chattels. It would mean ...


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