
    [No. 16771.
    Department One.
    April 19, 1922.]
    Elizabeth M. Bounds, Respondent, v. Minnie E. Galbraith, Defendant, F. E. Langford, Appellant.
      
    
    Execution (91) — Sukplementary Proceedings — Claims by Third Persons. In proceedings supplemental to execution, under Rem. Code, § 620, authorizing an order for the delivery of property “the right to the possession whereof is not substantially disputed,” the court cannot reguire the delivery of money placed in the hands of and claimed by an attorney, advanced to him to cover the cost of and for the purpose of presenting an appeal for the judgment debtor.
    Appeal from a judgment of the superior court for Spokane county, Webster, J., entered March 24, 1921, upon findings in favor of the plaintiff, in proceedings supplementary to execution, tried to the court.
    Reversed.
    
      Lucius G. Nash, for appellant.
    
      Corkery & Corkery and John M. Gleeson, for respondent.
    
      
       Reported in 206 Pac. 357.
    
   Tolman, J.

— A judgment in this case was entered in favor of the respondent in December, 1920. Execution was issued and returned nulla bona. Thereafter, on January 5, 1921, proceedings supplemental to execution were begun, and appellant and others were cited to appear and answer under oath as to what, if any, property of the judgment debtor was in their possession or under their control. A hearing was had, and thereafter the trial court made findings and conclusions and entered an order thereon to the effect that appellant had in his possession and under his control $225 belonging to the judgment debtor, which sum he was directed to pay to the sheriff. From this order he appeals.

It appears without substantial dispute that appellant, who was the attorney for the judgment debtor in this and other matters, was employed to take an appeal from the original judgment, and estimated that the cost of prosecuting that appeal, with what was already due him from the judgment debtor, would amount to the sum of $1,000. The judgment debtor being without ready means at that time, appellant arranged for one Olsen to advance to him $1,000 for the purpose indicated, and to secure Olsen, one Smead, a son of the judgment debtor, by warranty deed, conveyed to Olsen’s son an equity in certain residence property in Spokane, the legal title to which he held. At the time of the hearing below, the appeal from the original judgment was pending in this court, and appellant’s services in connection therewith were not completed. The cost thereof had not been and could not then be accurately determined, and the result of the appeal, of course, was wholly unknown. Appellant claimed the right to retain the whole sum of $1,000 to be used for the purpose intended; nevertheless the trial court proceeded to fix an amount which, in his opinion, would be sufficient to cover the costs of the appeal, and pay to appellant a reasonable compensation for his services therein, and the sum so fixed, together with the amount previously due him, appellant was permitted to retain. The overplus is the amount which he was directed to pay to the sheriff.

This being a purely statutory proceeding, our statute upon this subject, Rem. Code, § 620 (P. C. § 7934), seems to he controlling. It reads:

“Where it appears from the examination or testimony taken in the special proceedings authorized by this chapter that the judgment debtor has in his possession or under his control money or other personal property belonging to him, or that one or more articles of personal property capable of manual delivery, his right to the possession whereof is not substantially disputed, are in the possession or under the control of another person, the judge by whom the order or warrant was granted, or to whom it is returnable, may in his discretion, and upon such notice given to such persons as he deems just, or- without notice, make an order directing the judgment debtor, or other person, immediately to pay the money or deliver the articles of personal property to a sheriff designated in the order, unless a receiver has been appointed or a receivership has been extended to the special proceedings, and in that case to the receiver.”

Assuming that money in the hands of a third person is within the statute, it clearly appears that the right of the judgment debtor to the possession and control of the money in appellant’s hands, or any part of it, was substantially disputed, and therefore appellant’s rights cannot be determined in this summary proceeding, hut only in an action where the proper issues can he framed, all interested parties can he concluded, and where, if proper or desired, a jury trial may be had.

The judgment appealed from is reversed.

Parker, C. J., Fullerton, Mitchell, and Bridges, JJ., concur.  