Security Loan Ass'n v. Weems , 69 Ala. 584 ( 1881 )

BRICKELL, C. J.

1. The judgment rendered against the defendants in the original suit is not void, though the return of the service of the summons may be so defective that on error it would avail to reverse the judgment. A garnishee can not take advantage of errors or irregularities in the judgment against the defendant, as whose debtor he is summoned. — 1 Brick. Dig. p. 182, § 405.

2. The appellant, having submitted to answer, remained before the court for the purpose of receiving its judgment. Notice of the application for the order for a further answer, and of the order itself, the regularity of judicial proceedings requires shall be imputed. It was a duty to be present during the term at which the answer was filed until final action was taken by the court. This is a duty devolving upon all suitors, and from which they can be relieved only by the act of the court, or by the act of the adverse party. — 1 Brick. Dig. p. 377, ■§ 180.

3. The statute requires a garnishee to answer not only whether he is indebted to the defendant at the service of the garnishment, or at the time of making answer, but also ■“ whether he will not be indebted in future to him by a contract then existing; and whether he has not in his possession, or under his control, personal property, or things in action, belonging to the defendant.” — Code of 1875, §§ 3269 and 3293. It is obvious the scope of a garnishment is greatly enlarged by the statute. Formerly, the garnishment had relation only to its service, subjecting an indebtedness then existing, not extending to such as accrued subsequently, though it was before answer, and resulted from a contract or some relation existing between the parties. Debts existing, not due and ¡Dayable, could be subjected, and for them a judgment rendered with a stay of execution until maturity. But debts, or demands, which would .accrue in the future from existing contracts, could not be reached. — 1 Brick. Dig. 175, § 318. The insufficiency of the remedy in this respect, it is the purpose of the present statute to cure.

The answer of the appellant disclosed that it held in pawn or pledge, as collateral security for debts owing it by the defendants, a number of shares of stock in several corporations. If there was default by the defendants in making payment of their debts, the appellant had the right to make sale of these stocks. The right was conferred by law — it was an incident to the relation existing between the parties. — 5 Wait’s Actions and Defenses, 176. When the sale was made, if there remained of its proceeds an excess, after paying the debts for the security of which the stock was pledged, the excess would have been money had and received by the appellant for the use of thdefendants in the judgment. There was then at the time of the service of the garnishment, and of the answer, a contract upon which in the future an indebtedness from the appellant to the defendants could accrue. There was propriety, -consequently, in the continuance of the garnishment for a further answer. The answer subsequently filed, disclosing that a sale had been made, and that its proceeds, which the garnishee had reserved, were more than sufficient to pay the secured debts, there was an indebtedness then existing, springing out of the antecedent contract which was properly subjected to the payment of the judgment against the defendants. For it the defendants could have maintained debt or widebitatus ass'umipsit, and any demands for which these actions will lie, may be reached by garnishment. How far the appellant could have been charged, as the holder of the stock, and what would have been its liability, are not material questions in the present condition of this case. When the debts were satisfied, the stock could have been seized and sold under execution at law, and we are incline to the opinion, that it was proper that the appellant should have been kept before the court, so that in the event there was payment of the debts, an order could have been made for the surrender and sale of the stock. We do not understand there is anything in the opinion of this court in Nabring v. Bank of Mobile, 58 Ala. 204, in conflict with this view. But we fo'rbear a consideration of this question, as it is not, in our opinion, necessary to a decision of this case.

4. At any time before final judgment against him, a garnishee may allege notice*to him that a stranger claims title- to, or an interest in the debt he admits, or in the property of which he admits possession. The allegation being made, the court is bound' to suspend further proceedings against the garnishee, and cause a notice to issue to the claimant to come in and maintain his right. — Code of 1876, § 3302. The purpose of the statute is to afford to the garnishee protection against adverse claims to the property or the debt, derived from the defendant to whom it either belongs or has belonged. It is not intended that creditors subsequently suing out garnishments, which are of necessity and indisputably subordinate to a prior garnishment which has been served, shall be suggested as rival claimants and introduced to litigate with the creditor who is first in point of time. They have no title to, or interest in the property or the debt — at most, they have but a lien, and whether it is superior or inferior to that of the creditor first suing out and obtaining service of garnishment, there are other and more appropriate modes of procedure for determining. The statute contemplates a trial of the ownership of the debt or property — whether it resides in the defendant or the claimant, and not a contest between creditors admitting the ownership of the defendant, who claim only priorities between themselves, resulting by operation of law. — Brooks v. Hildreth, 22 Ala. 469. The City Court did not err in refusing to suspend proceedings and cause notices to issue to the parties issuing garnishments .subsequent to the service of the garnishment of the appellant which had been served. Prima facie, they claimed, not in hostility or in priority to the appellee, but in subordination to his right, and there was no contest for the court to determine, and no peril of double vexation to the appellant.

Affirmed.