McLemore v. Cole , 43 Ala. 620 ( 1869 )

B. E. SAEEOLD, J.

The appellant sued out an attachment against the appellee, Marshall, to be levied on the crop of said Marshall, made during the year 1867, under General Order No. 13, issued by Gen. Swayne, then military governor of Alabama, on the 7th of November, 1867. The attachment was levied by summoning the appellee, Cole, to answer as garnishee. The answer of the garnishee was controverted. An issue was made up and tried by jury, and a verdict rendered against the garnishee. The verdict determined that he had in his possession a portion of the crop of the defendant Marshall, made in the year 1867, exceeding any claim he had on Marshall, to the amount of fifteen hundred dollars. The garnishee then moved, in arrest of judgment, that order No. 13 did not authorize a garnishment. The motion was sustained by the court, and this ruling is now assigned as error.

The order, which may be found in the acts of the legislature of 1868, p. 252, gives to the agricultural laborer a lien for his wages for the year 1867, on the crop of that year which he assisted in making, and directs its enforcement by attachment. The attachment is to be levied on the crop, or so much of it as may be necessary. It is to be issued whenever the crop has been removed, or is about to be removed, without payment of the wages, or without the consent of the laborer. One of the modes of levying an attachment, is summoning some person indebted to, or having in his possession, or under his control, property belonging to the defendant. — Revised Code, § 2943. As the purpose of this order was to give a lien on the crop, and an attachment to enforce it, it follows that the property to which the lien has attached can be pursued into the possession of any holder, but the remedy can not apply to any other property, debt, or obligation. The summons to the garnishee was a levy of the attachment on the crop which was liable, if in his possession.—Exr’s of Tellinghast v. Johnson, use, &c., 5 Ala. 514; Thompson v. Allen, 4 Stew & Port. 184; Carey v. Gregg, 3 Stew. 433; Cleaveland v. The State, 34 Ala. 258; Drake on Attachment, § 453.

The judgment is reversed and the cause remanded.