Collins v. Baldwin & Co. , 109 Ala. 402 ( 1895 )

BRICKELL, C. J.

An appeal must be taken in the name of the parties against whom the final judgment or decree is rendered, and the certificate of appeal should show when and by whom it was taken. If the certificate properly describes the case in which the judgment was rendered,' and the relation of the parties to it, a statement that the plaintiffs or the defendants, against whom the judgment was rendered, sued out an appeal, would be sufficient, without reciting their names. The record discloses a judgment rendered against several; and the certificate of appeal states that the appeal was taken by the “defendants.” If this statement cpuld be referred to the final judgment as found in the record, we could not hesitate to declare it sufficient. The tendency of our statutes and of our decisions is to regard substance and not form,'in certificates of appeal. But it is apparent this statement refers to the parties to the original suit, which is properly described in the certificate, naming the parties, including some as defendants against whom judgment was not rendered. The final judgment is rendered against the original defendant, and against Tompkins & Troy, his sureties on a bond purporting to have been given for the dissolution of the garnishment which had issued in aid of the original suit. The judgment determines who are the parties rightfully entitled to an appeal; who are aggrieved, if error has intervened. The relation of Tompkins & Troy, as sureties on the bond for the dissolution of the garnishment, authorized the rendition of judgment against them for the amount of the judgment against their principal, if it did not exceed the liability expressed in the condition of the bond. It is quite an error to suppose that there was anything in their relation preventing them from joining with their principal in the prosecution of an appeal. There are numerous cases in which, parties standing in a like relation have joined with their printipal in the prosecution of appeals. Where, on an appeal from the judgment of a justice of the peace, judgment has been rendered against the principal and sureties on the appeal bond, an appeal to this court, the sureties joining, has been uniformly maintained. I Brick. Dig. 91, § § 104-5. The defect in the certificate of appeal, which has been pointed out, is amendable under the statute.— Code § 3658.

The motion to dismiss the appeal must be overruled, and the appellants given ten days to cure the defect in the certificate. If within that time the amendment is not properly made, the motion to dismiss may be renewed.-

HEAD, J.

The act entitled, i!An act to dissolve garnishments in cases where the defendant executes bond to plaintiff’’ (Acts 1890-91, p. 590), is so awkwardly drawn that it cannot be literally enforced. If by reason of the filing of the bond therein provided for the garnishment is or shall be dissolved, and required to be dismissed. most obviously, no judgment can be rendered against the garnishee at any stage of the proceeding, for the reason, not only that the garnishment suit is expressly put out of court before the period arrives at which such judgment could be rendered, but that the manifest purpose of the enactment was to enable the garnishee to pay to the defendant whatever sum he owes him, and be discharged from liability to a judgment therefor, in favor of the plaintiff in the suit; the bond, with sureties, given by the defendant, taking the place of the liability. The provision in the act, therefore, that the condition of the bond shall be for the payment of the amount of such judgment as may be rendered against the garnishee in such proceedings, and the cost thereon, must be taken to mean,' for the payment of such sum and costs as judgment could have been render-' ed for against the garnishee, if the bond had not been given. We, in effect, so held, in some of our former constructions of this act. See Balkum v. Reeves, 98 Ala. 460; Balkum v. Strauss, 100 Ala. 207; Guilford v. Reeves, 103 Ala. 301. It results from this conclusion that the dissolution aud dismissal of the garnishment suit cannot take effect until a monied liability, for which the court could properly render judgment against the garnishee if the bond had not been given, shall have been first ascertained by one of the modes known to existing law for ascertaining such liability ; which modes are, an admission of indebtedness to defendant by the answer of the garnishee, suggesting no claimant of the fund; or, if suggesting a claimant, a trial of that issue, resulting in favor of the plaintiff; the ascertainment of indebtedness by contest of the answer of the garnishee, where such contest is interposed, as provided bylaw ; and the failure of the garnishee to answer, or show cause, after judgment nisi has been rendered against, and notice thereof duly served upon him; or two such notices returned not made known. It was never the intention of the legislature to do away with, or impair the efficiency of, these methods and remedies for ascertaining the' liability of the garnishee. The purpose of the act was simply to enable the garnishee to pay over to the defendant, pending the suit, the money owing by him, instead of setting it apart and holding it, unproductive, or paying it into court where it would lie idle, to meet judgment which might, in the course of the suit, be rendered against the garnishee;' and to substitute for the garnishee the defendant and the sureties on his bond, as the persons against whom judgment, for the ascertained liability of the garnishee, shall be rendered, relieving the garnishee from the rendition of any final judgment against him whatever. As we have said, we repeat, that in order to enforce the act at all, the garnishment and garnishee must necessarily be kept in court, until the amount of the latter’s liability is ascertained according to the forms provided by existing law ; and when the same is so ascertained, so that final judgment could and would be entered against the garnishee but for the act, and the execution of the bond under it, then judgment shall be rendered, not against the garnishee, but against the defendant and the sureties on the bond for the amount of the liability so ascertained, and the costs. We cannot, for a moment, subscribe to the argument of counsel that the execution of the bond renders the obligors liable absolutely for the amount of recovery the plaintiff may obtain against the defendant, without regard to whether or not the garnishee is liable in any way to the defendant, for the amount of such liability. So much can be said against the argument that we deem it unnecessasy to say anything. We feel quite sureño such thought pervaded the legislative mind. The court erred in rendering ■judgment against the obligors on the bond, without any ascertainment of a liability on the part of the garnishee.

Reversed and remanded.