"Defendant testified he is virtually pauper, possessing nothing of his: own subject to execution, but lives and does business in Shanghai on money in his mother's name, under sweeping power of attorney from her. In this melancholy state, he 1s} restricted to membership in three clubs, and reduced to living in a Aeading hotel at a monthly expense of $2,000." remarked Judge Milton J. Helmick, giving judgment on Thurs-aay in the US. Court for China against Mr. Grant Mark. The case was a proceeding in garnishment, with Mr. 1. E, Hudee as plainti Mr. Grant Mark defendant, and the China Finance Corporation garn-shee, Counsel were Mr. N. F. Allman and Dr. A. Grossman for the plaintft, and Mr. C, 8, Franklin for the Judge M, J. Helmick's opinion Is as follow:
This is a proceeding in garnishment, in which the garnishee had made an Answer to the Writ alleging that. holds no property of the defendant And is not indebted to the defendant. To this Answer plaintiff has filed a denying the truth of the Answer and on the issues so framed, hearing was made before the Court, aecordunce with Sections 136 and 137 of Title 24 of the District of Columbia Code, 'In order to understand the law and the facts Involved in this matter It is dout s advisable to review the History) the case. "The plaintt,.c, who is an' architect, brought an action at law against the defendant, Grant Mark, on November 15, 1933, to recover for profess services' rendered. After personal service of process upon him the defendant made default and judgment was rendered against Sh. $19,849.02 and costs, on. 20, 1094. "Execution was taken out but returned nullo bona by. the United States Marshal. "At the time this judgment was recovered the defendant was employed by the garnishee, the China Finance Corporation," under three-year: contract' of employment which had more than a year left to run. On March 15, 1934, this contract was. cancelled by a settlement between, the parties whereby the defendant was to be pald $50,000 by the China Finance Corporation as consideration for the premature termination of his employment. At the time this agreement was made the plaintiff deemed At impossible to sue out a Writ of Garnishment or Attachment because there was no Judge of this Court, owing to a vacancy, and consequently, the plaintiff resoried to a make-shift emergency course of procedure, by serving the China Finance Corporation with a copy of the Execution which had formerly been taken out, and by writing it letters warning it not to pay anything to the defendant.
This" procedure was, of course, legally ineffectual to bind the China Finance Corporation or to constitute ita garnishee. The company carried ut its agreement with the defendant, Dbut at his direction paid the $50,006 fo defendant's mother, Mrs. Myra L. Mark, said to be a British subject, instead of to him. The company, in view of plaintiffs letters and protests, in order to protest itself against any ye? possible liability, exacted an me demnity in the form of a cash deposit of $25,000 to be left with it before paying the money to defendant's mother. This indemnity, arrangement furnishes the basis of the present garnishment proceeding because plaintiff asserts the fund so deposited is either the money of defendant or money owing to him.
Tt is well to interrupt the orderly recital of facts at this point to mention the supplementary proceeding had in this case some weeks bef: re plaintiff sued out the present Writ of Garnishment. "Although the supplementary proceeding bore no. legal relation to the matter new before the Court, yet it seems pertinent because the decision ras been repeatedly cited as a controlling precedent in the garnishment matter now before the 'Court, and ecause the facts established' therein may somewhat luminate' the more obscure aspects of the transaction. In that supplementary proceeding the plaintiff caused the defendant to be brought before the Court by citation, to make disclosure under oath of his property and financial affairs. At that time the plaintiff did not low of the deposit which is now under" garnishment and consequently the inquiry largely centred around a bank account' in the Chase National Bank which stood in the name of Myra L. Mark and which the defendant used freely "under a Power of A: torney from her. Defendant testified he is virtually a pauper possessing nothing of his own subject to execution, but lives and does business in Shanghai on money in his mother's name, under a sweeping Power of Attorney: from her. In this melancholy state he Is restricted to membership in three clubs and reduced to living in leading hotel at a monthly expense $2,000. The decision of the Court at the close of the supplementary proceeding was as follows:
"It is a matter of some chagrin to the Court that it Is Unable to render the decision which it believes is called for the rights of his mother, either real launed, this Court cannot deal. Among her tights, and avery. substantial one of course, is the right she is exercising drawing on this account. This Court Cannot reach her nor her property [That situation arises. of course, because ties obtaining would be-un-inkable for this Court to presume to feall in, British subjects or deal with their Tights. The. best this Court can do, T suppose. Ib to continue what has been done and" which may be rather [cold comfort to the plaintiff that fs, the [Court will continue its restraining order against. this defendant forbidding him from drawing on this account. That seems tobe about the best the Court gan do and as far as the Court can go Perhaps some relief on the other side the picture might be obtained In the British Court "ie plaintitt will apply there." That. of course, this Court cane of say. "AS the matter stands now the Court feels that this account ie. a, wice but since the account that of a British subject the Court can inquire no further. And passing T'might say that any Ameri= Jean bank tu this community may expect from time' to time to. be served. with the orders of thie 'Court and. banks must' neither be surprised nor irked, "That seems to be about all. the much for the interlude of the supplementary proceeding.
In resuming the recital of - facts involved in the garnishment matter it advisable, first, to note the positions and attitudes of the interested parties at the hearing on the Traverse f the Answer. The plaintiff sought to establish that the indemnity deposit was a fund in the hands of the garnishee, belonging to or owing to the defendant. From tt point the indemnity aspect of the deposit is immaterial because he not sueing the company nor bring-an action based on the theory of fan undertaking for his benefit, but prosecuting an ordinary "Writ 9f, Garnishment to seize funds of the defendant in the possession of the company. The garnishee denied that it holds funds belonging to or owing fo the defendant and took the position that. although it is indifferent whether plaintiff or defendant bene-its by this litigation, yet it fe vitally: concerned in having—proteotion against a double liability and therefore objects to paying out any money except upon a voltd adjudication which is binding on all. necessary' parties. "The defendant, "although duly notified, ignored the hearing and was not represented by counsel. Defendant's mother fled no intervention nor any other written plea or claim, Dut through counsel in open Court orally entered her "special appearance" for the purpose of "denying the jurisdiction of the Court." Except for the argument of liber counsel at the close of the hearing, she did not participate in it.
The evidence disclosed the following facts. The indemnity given the garnishee before paying the defendant's mother is in the form of deposit with the garnishee in. the sum of $25,000 in the name of A. Loonis, a subject of Belgium. he! terms and conditions of the deposit are contained in an instrument executed by Loonis and the garnishee which reads as follows:—
Text read from the printed page and cleaned; old type leaves the occasional error.