Sharpe v. Wharton , 85 Ala. 225 ( 1887 )

SOMEBVILLE, J.-

1. Tbe statute provides, that no demand or debt in any court of record can be attached under an attachment,' or other process, issued by, and returnable before a justice of the peace. — Code, 1886, § 3338; Code, 1876, § 3686. The Circuit Court in this State is a court of record, and the debt here sought to be attached by process of garnishment had been reduced to judgment in that court. The justice was forbidden by the statute to subject it to the debt in this mode; and for this reason the petition for supersedeas, in which the appellant, Sharpe, sought to obtain the benefit of this illegal proceeding, was properly quashed and dismissed from the Circuit Court.

2. The action of the Circuit Court can be sustained on another ground. An unexecuted judgment against a garnishee will not, in this State, protect him against the enforcement of the same debt by the creditor. The garnishee must show that he has satisfied the judgment against him, in order to defend against the collection of it by the creditor; otherwise, as is said by ORMOND, J. in Cook v. Field, 3 Ala. 53, where this precise question was decided, “if an unexecuted judgment against the garnishee would be a bar to a suit against him by the original creditor, it might happen that he would not be compelled to pay the debt at all, as the judgment of the attaching creditor might never be enforced.” A like view is taken by the courts of Pennsylvania, Maryland, Georgia, and Texas, although in several of the other States a contrary conclusion seems to have been reached. 1 Drake on Attachments (6th Ed.), § 708, and cases cited.

The Circuit Court did not err in quashing the petition for supersedeas, and dismissing it.

Judgment affirmed.