If the statute has omitted to provide a system of garnishments on choses in action, and omitted to provide a mode of collecting from garnishees the taxes on the debts due the person assessed, as in this case, then, we must suppose the omission to be intendedto avoid complication of the affairs of government in the collection of taxes, and a disturbance of the business and commercial relations between men; the State relying upon the arbitrary lien upon real estate and personal property subject to execution, and the chances of collecting the delinquent tax upon the duplicates of another year. But it matters not whether the omission be intentional or accidental, so long as it exists.
No tax lien attached on the fund in dispute. It was but a debt due from Brumagim & Co. to Adams & Co., or their receiver, on general certificate. The money itself, sought to be taxed, was the money of Brumagin & Co., and although Adams & Co. might have been liable to be assessed and taxed for solvent debts exceeding indebtedness, yet they have not been so assessed and taxed; but if so, the lien only extended to the real estate and personal property subject to seizure, etc.
JUDGES: Terry, J., after stating the facts, as above, delivered the opinion of the Court. Murray, C. J., concurring.
OPINION
TERRY, Judge
The several objections to the right of the county to institute this proceeding, are, as we think, settled by the six hundred and fifty-ninth section of our Practice Act, which provides, that any person shall be entitled to intervene in an action, who has an interest in the matter in litigation in the success of either party, or an interest against both.
By our Revenue Act, money is included in the term " personal property," and is subject to be assessed for taxes, whether in the hands of the owner, or any other person. (See Acts of 1854, p. 104, secs 60-74.)
The levy of the tax gave to the intervenor a judgment and lien on the property assessed, having the force and effect of an execution, which might be enforced in the same manner as other executions. (See Sec. 86 of same act.) This lien was not divested by the subsequent proceedings taken by Brumagim and others; but the fund, being in the custody of the law, was not liable to seizure, and the proper remedy was by direct application to the Court having the fund in possession.
But if we were doubtful of the regularity of the intervention, there is another fact disclosed by the record, which is conclusive as to the rights of the parties to this action. Adams & Co., and Cohen, receiver, have, by failing to answer, admitted the right of the intervenor to recover. The only parties contesting, are certain creditors who claim to have a lien upon the fund by reason of having attached it, in the hands of Brumagim & Co. It appears that the levy of such attachment was made, whilst the fund held by Brumagim, as the bailee of Cohen, a receiver, duly appointed by a competent Court, was, under the former ruling of this Court, not liable to be attached. (See Adams v. Haskell , 6 Cal. 113.) It follows that defendants, having no lien upon the fund in dispute, are not in a condition to deny the rights of the intervenor.
Judgment reversed.