Edwards v. Nordholm , 116 Ala. 220 ( 1896 )

COLEMAN, J.

Nordholm, the appellee, recovered judgment in the justice’s court. Pending the existence of this judgment, he recovered judgment against Edwards as-garnishee. After the rendition of the judgment on the garnishment, the defendant debtor gave bond and appealed the case against him. Neither the defendant debtor nor the garnishee appealed the judgment in the garnishment case. On the appeal from the justice’s court, the plaintiff again recovered judgment against the defendant debtor. The simple question is, what effect did the appeal of the judgment against the debtor by the debtor, have upon the garnishment case? It is contended that the execution of the appeal bond and the appeal vacated and annulled the garnishment judgment; this upon the ground that the garnishment judgment cannot stand, except upon a judgment against the main defendant, and as the trial in the circuit court upon the appeal is de novo, and the judgment rendered is a new judgment, and not an affirmance in any sense of the judgment in the justice’s court, all the garnishment proceedings must fall. Under this rule, a plaintiff who may rightfully sue out an attachment or garishrnent process returnable to a 'justice’s court, because of an erroneous decision by a justice of the peace, would be compelled to lose his attachment or garnishment security, although his claim be established and judgment rendered in his favor on the appeal. The consequences in the one case demonstrates tire error of the argument and conclusion in the other.

While, garnishment proceedings are ancillary to the main suit, when a judgment has been legally rendered against the garnishee, it is in many respects independent of the judgment in' the main case. It may be appealed from by either the garnishee or the defendant debtor without appealing the main case, and if neither appeal, both- will be held to have waived any error that may have intervened in its rendition. A payment wholly or in part by the judgment debtor, furnishes the ground pro tanto for enjoining the enforcement of the garnishment debt, just' as in cases where there are separate judgments against a principal and surety. The garnishment judgment is so far ancillary that a supersedeas of the main-judgment has the effect to suspend the right to enforce the garnishment judgment. The mere fact, that by statute on appeal from a justice’s court of the main case, the trial is de novo,-does not ipso facto destroy the garnishment judgment. During the pendency of the appeal of the main case by reason of the ancillary chai’acter of the garnishment, that proceeding is suspended until the termination of the main case by final judgment. If the defendant succeeds in defeating the plaintiff’s claim on appeal, that would be ground for enjoining the collection of the garnishment, or to authorize a certiorari to the justice’s court in which the judgment on the garnishment was rendered.

Section 3406 of the Code of 1886, under the subject of appeals from justices of the peace, provides that, “No attachment can be quashed or dismissed in the appellate court for any defect in the affidavit, attachment or bond, or for want of bond if the plaintiff will execute a sufficient bond.” There are many decisions in our court upon questions affecting the validity of attachments issued and returnable to justices of the peace, made in the appellate court on appeals from the justices’ court. The provision in section 3406, siopra, and these decisions were unnecessary and ineffectual for any purpose, if an appeal by a defendant from a justice’s court annulled and destroyed attachments issued and pending and garnishment judgments rendered in justices’ courts.

When an attachment has been levied on personal property, returnable to a justice’s court, and plaintiff recovers judgment, and on appeal to the circuit court, judgment is again rendered in favor of plaintiff, he is entitled to have the judgment certified with a procedendo to the justice’s court; and he would be entitled to the same process, to have judgment, recovered before the appeal, enforced against the garnishee. — Derrett v. Alexander, 25 Ala. 265. No possible injury can result to a defendant from the application of these principles, whereas a different rule would result in injury to the plaintiff.

The ruling of the circuit court was in accordance with these views, and must be affirmed.

Affirmed,