Teague, Barnett & Co. v. LeGrand , 85 Ala. 493 ( 1888 )

STONE, O. J.

Garnishment, such as was resorted to in this case, is purely a legal remedy, a species of statutory attachment. When invoked for the purpose of condemning credits, or legal liabilities due to the defendant in the attachment, it is not every species of liability that can be reached, It is such as tbe defendant in attachment can recover of the garnishee in an action of debt, or indebitatus assumpsit, that are subject to this process. Code of 1886, § 2976, and note. True, the debt need not be due and presently demand-able ; but there must be a contract, express or • implied, out of which a money liability will certainly spring, in the usual course of things. Many contracts, from which money liabilities may possibly arise, are not subject to garnishment at law. — Jones v. Crews, 64 Ala. 368; Hurst v. Home Protection Fire Ins. Co., 81 Ala. 174; Levisohn v. Waganer, 76 Ala. 412; Sec. & Loan Asso. v. Weems, 69 Ala. 584; Henderson v. Ala. Gold Life Ins. Co., 72 Ala. 32; Alexander v. Pollock, Ib. 137; Nat. Com. Bank v. Miller, 77 Ala. 168.

The contract, on account of which the liability of the garnishee was sought to be fixed and enforced in the present suit, was a subscription of capital stock in a private corporation. There was no promise to pay generally, or at any fixed time. The payments were to be made, when calls should be made therefor; and there had been no calls. It could not be known that calls ever would be made, and hence no legal liability was shown which would maintain debt, or indebitatus assumpsit. Chancery might have taken jurisdiction, the corporation being insolvent, and itself made calls, and enforced their collection, for the benefit of creditors. — Glenn v. Semple, 80 Ala. 159. A common-law court — the more especially under statutory garnishment — is without the power to do so.

The garnishment being unauthorized, because there was no debt subject to such process, it fastened neither lien nor claim on the sum subscribed. In no sense did the court obtain control of it, so as to hamper or abridge the power of the parties to dispose of or adjust it, subject always to the claims of creditors, properly asserted, if it was not paid in good faith.

Affirmed.