Roby v. Labuzan , 21 Ala. 60 ( 1852 )

DARGAN, C. J.

— The decisions of this court have settled the question, that the process of garnishment relates only to the time of its service; and if there is no indebtedness at that time from the garnishee to the defendant in the .attachment, the plaintiff will not be entitled to judgment, although it may appear, that, between the time of service and answer, the garnishee became indebted, and paid the debt to the defendant in attachment. The Branch Bank at Mobile v. Poe, 1 Ala. 396; Hazard, admr. v. Franklin, 2 Ala. 349; Payne v. The Mayor and Aldermen of the City of Mobile, 4 Ala. 333. In the case cited from 2 Ala., it was said, that even if the garnishee held notes on others belonging to the defendant at the time of the service of the writ, and which were subsequently paid to him, still, as there was no actual indebtedness from the garnishee at the time the garnishment was served, the plaintiff was not entitled to recover. Hazard v. Franklin, supra. It is, however, urged, that these decisions take too narrow and restricted a view of this remedy, and are contrary to the decisions of the other States of the Union, as well as the decisions of England, upon process of this kind, arising out of the custom of London.

I admit that the courts of Massachusetts, Pennsylvania, and some other States, hold a different rule, and, in England; the rule seems to be, that the garnishee may answer or plead immediately, if he has no funds, and thus discharge himself; but if he does not, and waits until he becomes indebted, or has property in his hands belonging to the defendant, he must then answer as to such propertjr or indebtedness: the issue relating to the time of the answer, and not to the time of the service of the process. 3 East, 374.

I confess, that if the question was an open one, I should be disposed to hold in conformity with the English decisions, which have been adopted by most of our sister States in which the question has arisen. But our predecessors have settled the rule otherwise; it has become well known, and has constantly been acted upon, and we must yield to it.

But it is contended that the garnishee, though not strictly indebted at the time of the service of the writ, nevertheless had property in his possession, to-wit: the cotton, and that he is liable for the value thereof, over and above the advances made by him, to Jones, the defendant in attachment. To this argument, I cannot assent. The process of garnishment can reach only the legal rights of the defendant. What I mean by legal rights, is, that it reaches such debts as can be enforced by the defendant in the attachment by suit at common law, and also, such property as would be liable to seizure and sale, if the sheriff could get possession of it.

In the case of Harrell v. Whitman, 19 Ala. 135, we held, that the process of garnishment must be considered as a legal, and not as an equitable proceeding; and therefore, the defendant’s right to the fund or property sought to be condemned, must be a legal, as contradistinguished from an equitable one; and in the course of that opinion, it was said, “If we ever depart from the plain rule, that an attachment and garnishment can. operate only on the legal rights of the defendant, there would be no stopping point, and we should have to go the full length, that equitable rights might be attached by garnishment in a suit at law; and thus a court of law would become invested with cognizance of equitable rights, and bound to ascertain and condemn them, however difficult the task might be, or however incompetent the powers of the court for this purpose.” That decision is well sustained by the previous adjudications of this court, and we feel no inclination to depart from it.

It may, however, be said, that the right of Jones to the surplus, after paying the advances, is a legal, and not an equitable right. I admit it is so, after the money came into the hands of Labuzan, the garnishee; but, considering the cotton as property at the time of the garnishment, and we are bound so to consider it, it is very clear that it could not have been levied on in the possession of the garnishee, who had made advances upon it. The defendant in the attachment had parted with the possession and control of the cotton, and was only entitled, after the sale, to the surplus, if any, after paying the amount advanced to him. In that condition, the cotton was not subject to execution at law, and I do not see how it could be liable to attachment. An attachment can be levied only on such property as is the subject of levy and sale under execution; and if one be garnisheed on the ground that hechas property of the defendant’s in his possession, or under his control, it must be shown that the property is such as is the subject of levy and sale under execution. If, then, we consider the cotton as property in the possession of Labu-zan, it could not be sold under legal process against the defendant, and, consequently, it cannot be'reached by process of garnishment; and if we consider the right of Jones as the mere right to demand the surplus of the money it might bring, after the payment of the advances made by Labuzan, then the decisions we have referred to furnish the decisive answer, that at the time of the service of the writ, there was no debt due from the garnishee to the defendant in the attachment.

It may be, that our decisions have so restricted the operation of this process as to lose some of the benefits that creditors might have derived from it; but we deem it best to adhere to them, and let the legislature extend the remedy.

As we come to the conclusion that the plaintiff is not entitled to a judgment against the garnishee, even admitting that he had paid over the money to Jones himself, or to Curry, Desmukes & Co., as the agents of Jones, it is unnecessary to examine the questions growing out of the contest between the plaintiff and Curry, Desmukes & Co., who claimed to be the transferrees of the money paid by Labuzan to them.

Let the judgment be affirmed.