Langdon v. Lockett , 6 Ala. 727 ( 1844 )

GOLDTHWAITE,-J.

We have several times had before us, the question here, for individuals connected as officers with courts of justice, are liable to process of garnishment from other courts. Thus we have held that a sheriff cannot be garnisheed for monies collected, at the suit of a creditor of the plaintiff in execution. [Zurcher v. Magee, 2 Ala. Rep. 253.] Also, that an attorney or justice of the peace, having collected money in their respective characters, may be garnisheed. [Mann v. Buford, 3 ib. 312; Clark v. Boggs at this term ] It is argued by the counsel for the defendant in error, that an officer of one court cannot be called before another to contest any matter respecting money collected under legal authority. This is unquestionable, when from the nature of the case, or from the circumstances attending it, the money can be drawn into litigation in the court from whence the process issued; but it does not apply to those cases where there can be no l.tigation of that nature. The investigation which may bo had into the correctness of a sale, is not in any sense a contest with respect to the money or the right to it. Every court possesses the inherent power to prevent abuse of its own process, by sett ng aside fraudulent or even oppressive sales. [Moore v. Mobile Cotton Press, 9 Porter, 679.] But this does not divest the right of the defendant in execution to the excess of money arising from the sale of his property, after satisfying the process. The question may be undetermined, whether the sale is valid or invalid, yet the money is prima facie due to the defendant in execution, in the same manner as it is upon an express promise , to pay; and this prima facie right is subject, in our opinion, to the process of garnishment. This is the effect of the decision in Day v. Becher, [1 McMullen, 92,] and also in Watson v. Todd, [5 Mass, 271;] in which latter the marshall of the United States was hold liable to trustee process, for a balance remaining in hands after satisfying the process held by him against the goods of the common debtor.

There is a strong reason why the process should be effectual in a case like this, because the debtor may, at any time after the sale, demand and secure the money from the officer; and if it could -not be attached, suitors would be entirely remediless. — • On the other hand, no injury can arise to the officer, for it is in his power at all times, to pray the court before which the process of garnishment is returnable, to suspend its action until any question respecting the regularity of the sale, is determined. In the present case, no objection of this nature is interposed, and we must intend that no just cause for exception existed. •

Our conclusion is, that the judgment is erroneous, and therefore, it is reversed and remánded.