Cunningham & Son v. Baker, Peterson & Co. , 104 Ala. 160 ( 1893 )

BRICKELL, C. J.

The levy of the attachment was made only by the service of a garnishment. The judgment of the court below, from which the appeal is taken, was rendered, sustaining or overruling demurrers the parties interposed. From these rulings, the counsel have evolved, as the principal question of the case, to which they have directed argument, the liability to garnishment of the moneys or effects, in the possession of the garnishee, the attaching creditor seeks to reach and condemn.

The nature and office of a garnishment is defined and and declared by the Code, in these words : “A garnishment, as the word is employed in this Code, is process to reach and subject money or effects of a defendant in attachment, or in a judgment or decree, or in a pending suit commenced in tlie ordinary form, in the possession or under the control of a third person, or debts owing such defendant, or .liabilities to him on contracts for the delivery of personal property, or on contracts for the payment of money which may be discharged by the delivery of personal property, or on contract payable in personal property ; and. such third person is. called the garnishee.” — Code, § 2994. This section of the Code is but the expression of the nature of a garishment, as it had been defined and declared, in effect, by a long course of judicial-decisions. It is obvious that under the statute, and under prior judicial decisions, a garnishment has a dual office. The one is, and the one in which it is more usually employed, the subjection of a debt, or of a demand originating in contract, or moneys coming rightfully and legally into the possession of the garnishee, which it is a legal duty to pay to the debtor of the creditor suing out the garnishment. The other is, the subjection of moneys or effects in the possession or under the control of the garnishee, which it is a legal duty to deliver to the debtor. With the exception of cases of conveyances, or transfers, or agreements, made to defraud creditors, a garnishment cannot be employed to reach or subject any debt, or any demand, the debtor suing in his own name cannot recover in an action ex contractu, or, as it is generally stated, in “an action of debt, or indebitatus assumpsit.” — 1 Brick. Dig. 175, §§ 314, et seq. And prior to the adoption of the present Code, the debt or demand, must have been payable or solvable in money only. — 1 Brick. Dig. 176, § 320; Jones v. Crews, 64 Ala. 368. The Code, (Sections 2945-46), enlarges the debts or demands which may be reached by garnishment. Not only debts or demands payable or solvable in money, but a liability “on a contract for the delivery of personal property, or for the payment of money which maybe discharged by the delivery of personal property, or on a contract payable in personal property, ” is within the scope of the remedy. The liability must originate in and be dependent on contract. This remains as essentially the controlling element and characteristic of the remedy, as it was when debts or demands payable or solvable in money only were within its scope, if either of the several contracts to -which the remedy is extended is broken, when the facts are ascertained, the law fixes the measure of damages, the value of the property at the time it should have been delivered or paid, with the interest on such value from that time. An unliquidated demand having in it no element of contract, or unliquidated damages, or the right of action for a tort, is not the subject of garnishment. — 1-Freeman on Executions, § 167, and .authorities cited.

The moneys and effects of the defendants in attachment, in the possession of the garnishee, were obtained from the defendants by talcing them into custody, imprisoning them, and making search of their persons and trunks. The arrest, imprisonment and search were without warrant; without any reason to believe that the defendants, or either of them, had committed, or intended the commission of, any offense against the law of this State. The only inducement, or moving cause for it, vouched by the garnishee, was a telegram adressed to him as chief of police of the city of Montgomery, by the chief of police of the city of New Orleans, requesting that he see the conductor of an approaching railroad train, “and keep track of Baker and Peterson, swindling commission merchants.” The statute authorizes the policemen of an incorporated city or town, within the. limits of the county, with or without warrant, to make arrests in all cases in which the sheriff is authorized to make them. — Cr. Code, § 4260.

As a general rule, at common law an arrest could not be made without warrant. If a felony was committed, or a breach of the peace threatened or committed, within the view of an officer authorized to arrest, it was his duty to arrest without warrant, and carry the offender before a magistrate. Or, if a felony had been committed, and there was probable cause to believe a particular person was the offender, he could be arrested without warrant. — Halley v. Mix, 3 Wend. 350, s. c. 20 Am. Dec. 702 ; Burns v. Erben, 40 N. Y. 463. The matter of arrests is now the subject of statutory regulation, largely affirmatory of the rules of the common law.— Or. Code, §§ 4260-4274. The statutes, and the corresponding rules of the common law, have primary, if not exclusive, relation to the administration of the criminal laws of the State. If an arrest be legal, under what conditions, and for what purposes, there may be a search of the person arrested, and what things found upon his person may be taken into possession by the officer making the arrest, was the subject of very full and deliberate examination and exposition in Ex parte Hurn, 92 Ala. 102. A repetition of what is there said is not now necessary. A search of the person arrested. is j ustifiable only as an incident to"_,a lawful arrest; if the arrest be unlawful, thp search is unlawful, and is aggravated by the illegality of the arrest.

If a person charged with treason, felony, or other crime, in another State, has fled therefrom, and is found in this State, the statutes provide for his apprehension and detention to await a requisition from the Executive of the State in which the crime was committed. — Or. Code, §§ 4747-4760. Under these statutes, a warrant of arrest must issue from a magistrate having authority to issue such warrants. In the absence of statutes, upon common law principles, the apprehension and detention of persons charged with crime in other States, was effected through judicial officers, upon probable cause being shown by appropriate evidence. — Morrell v. Quarles, 35 Ala. 544; 1 Kent Com., 36 — 37. The intervention of a judicial officer and a warrant of arrest were deemed the more orderly, if not the only course of legal procedure. The current of- judicial decision supports the proposition that when the matter of apprehension and detention is regulated by statute, the statutory mode of procedure must be observed, and that arrest and detention otherwise is illegal. — Malcolmson v. Scott, 56 Mich. 459 ; State v. Shelton, 79 N. C. 605; Ex parte Cubreth, 49 Cal. 435 ; Ex parte Thornton, 9 Texas, 635; Matter of Heyward, 1 Sandf. Sup. Ct. (N. Y.) 702; Matter of Leland, 7 Abbott Pr. Rep. (N. S.) 64; Matter of Rutter, Ib. 67.

Whether an officer, having authority to make arrests, may not, without warrant, arrest a person in this Staté whom he has reasonable cause to believe has committed a felony in another State, and to have fled therefrom, is a question, upon which this case does not require the expression of an opinion. If the authority exists, to support its exercise, there must be reasonable cause to believe that the crime supposed to have been committed is a felony, not a less offense, under the law of the State in which it was committed; that the person arrested committed it, that.he is a fugitive from the justice of the State. Without the concurrence of these facts the arrest can not be justified. The telegram which was the moving cause of the arrest, imprisonment, and search, and the only source of all the information the garnishee had, and upon which alone he acted, is incapable of any interpretation or construction, importing that the d'efendants had been guilty of felony. The only words which can be supposed to impute criminality, found in the telegram, are the words, “swindling commission merchants.” The word swindling has no legal or technical meaning; and commonly, it implies, that there has been “recourse to petty and mean artifices for-obtaining money, which may or may not be strictly illegal.” The disappointed and vexed creditor not infrequently will apply the term swindler to a delinquent debtor, and an absconding debtor is no.t infrequently spoken of as having swindled his creditors. . Words of such uncertain meaning can not justify or excuse an invasion of the personal liberty of the citizen, or of him who is within the jurisdiction of the State, entitled to the protection of its laws. An officer can not justify an arrest upon the ground, that he had reasonable cause to beleive the person arrested had committed a felony, unless he has information of facts, derived from those reasonably presumed to know them, which, if submitted to a judge or magistrate having jurisdiction, would require the issue of a warrant of arrest, and the holding of the accused to await further examination. — Malcolmson v. Scott, 56 Mich. 459. We do not deem it necessary to consider the subsequent correspondence with the chief of police of the city of New Orleans. It was not upon this correspondence the arrest, imprisonment and search of the defendants were made, and what it may import is immaterial. An illegal arrest can not be justified by facts subsequently ascertained; nor can an arrest made forj one purpose, be justified for another.

The moneys and effects in the possession of the garnishee having been obtained by him illegally, tortiously, the relation of debtor and creditor did not exist between him and the defendants in attachment; the only relation he bore to them, was that of a tortfeasor, and from that relation no debt, no demand having in it the element of contract and the subject of garnishment, could arise. But it is contended that while this may be true, the garnishee may be charged because he had in his possession and under his control, moneys and effects of the defendants in attachment. The contention can not be supported. A garnishment, whether it is employed to reach and subject debts or demands due and owing by the garnishee to the attachment or j udgment debtor, or moneys or effects of the debtor in the possession of the garnishee, presupposes a contractual relation existing between the debtor and the garnishee. It is, in effect, the institution of a suit by a creditor against the debtor of his debtor; the substitution of the creditor to the right and remedy of his debtor ; the right and remedy springing from a contractual relation existing between the debtor and the garnishee. — 1 Brick. Dig. 173, § 276. The debtor may have an election to pursue the garnishee in an action fora tort, or to waive the tort, and pursue him for money had and received. The creditor can not make the election, he can not waive the tort; the election pertains only and exclusively to the debtor. — Lewis v. Dubose, 29 Ala. 219. It would be a diversion of a garnishment from its real office and purposes, if it were employed to redress torts committed against the debtor, and to reach and subject moneys or effects the possession of which is not held in his right, but is held adversely and in hostility to him. In Despatch Line v. Bellamy Mfg. Co., 12 N. H. 205, s. c. 37 Am. Dec. 203, it was held, that a trespasser in the possession of another’s goods can not be charged as a garnishee. The correctness of this decision has been questioned. — 2 Wade on Attachments, § 415. But we are assured it is in accordance with the theory of garnishment as it exists under our statutes, and corresponds to the course of our decisions.

Lastly, the contention is, that as the plaintiff in attachment had no agency in or connection with the tort by which the garnishee obtained possession of the moneys or effects, they have the right to pursue them in his hands. Whatever of force there might be in this contention, if there had been a levy of the' attachment on the moneys and effects, it is not now necessary to consider. Such levy was not made; instead of it, the garnishment was resorted to, and if there had been a liability resting on the garnishee within the scope of that remedy, he would have become a mere custodian.of the property, subject only to the duty of taking care of the property, until judgment was rendered in the garnishment suit; and the degree of care he was bound to exercise, would have been dependent upon the contractual relation existing between him and the owner from whom possession was derived.

We have considered all the questions presented in the arguments of counsel; we find no error in the judgment of the court below, and it must be affirmed.