Cook v. Walthall , 20 Ala. 334 ( 1852 )

CHILTON, J.

It may be conceded, that tbe lien created by tbe levy of Cook’s attachment could not be defeated by tbe subsequent levy of other and junior attachments by the constable, and that Cook is not without remedy to enforce his lien; yet it is too clear to admit of doubt, that he cannot reach the fund by the process of garnishment. This is a proceeding by which a creditor is enabled to reach in a summary way a demand due from a third person to his debtor; and to entitle the plaintiff to this remedy, it must be shown that the judgment debtor could have maintained debt or indebitatus assumpsit for the recovery of the demand sought to be subjected. McGehee v. Walke, 11 Ala. Rep. 273. In other words, the plaintiff in the garnishment is merely substituted to the rights of his debtor; and if the latter could neither maintain debt nor assumpsit for the recovery of the demand sought to be recovered, the plaintiff in the garnishment is not entitled to this remedy. McGehee v. Walke, 15 Ala. Rep. 183. Now it is not contended that Faulke could have recovered this fund from Walthall by any action, for the money certainly belongs either to the plaintiff in error, or, his claim aside, to the creditors of Faulke whose attachments were subsequently levied. It is not a question whether the money shall be paid to Faulke or to the attaching creditor, but the controversy is between two creditors who have conflicting liens by virtue of their levies. This controversy cannot be settled in such proceeding as this.

Again: Walthall had paid over the money to persons entitled as against Faulke, to receive it, before the garnishment issued, so that he could not be regarded as Faulke’s debtor when the garnishment was served.

In any view which can be taken of this case, it is clear the party has mistaken his remedy, and that the court properly instructed the jury to find for the garnishee, if he had received from the constable the proceeds of this sale, as set forth by the proof in the bill of exceptions, and was not otherwise indebted.

Whether, if the facts stated in the bill of exceptions be true, Cook has not his remedy against Walthall for the surplus remaining after satisfying tbe two attachments first levied, we are not now called upon to decide. We are very sure these facts do not make Walthall Faulke’s debtor, and consequently show no demand which can be reached by garnishment.

Let the judgement be affirmed.