Smith v. Chapman & Brother , 6 Port. 365 ( 1838 )

GOLBTHWAITE, J.

A writ of attachment was sued out before a justice of the peace of Balias county, returnable to the Circuit court, at the suit of Chapman & Brother, against the estate of George Cater. This writ is directed to any lawful constable cf Balias county; and is returnable “executed” by one who.may be presumed to answer to the description of the oíscer named; from the addition, after his name, of the letters O. D. C. No instructions are endorsed on the writ, for the officer to execute it by the service of a garnishee process, on any person; but a summons of garnishment, to Smith, the plaintiff in error, signed by the same person, who makes return of the writ of attachment, follows it in the record, without any return endorsed thereon. This summons, describes the attachment with accuracy, except the description of the plaintiff, who in this, is stated to be Joseph Chapman, instead of Chapman & Brother. At the appearance term, Smith came into open court, and stated on oath, that at the date of the service of the attachment, he was indebted to the said Carter, in the siim of one hundred and nine dollars, to be paid in store accounts, due at the date of the service of the attachment; and that ho owed said Cater no other money, &c.' On this answer, it was considered by the court, that the said garnishee, held in his hands, the said sum of one hundred and nine dollars, in store accounts, so acknowledged to be due as aforesaid, subject to the further order of the said court. At the nest term, a-judgment by default, was rendered against Cater, the defendant in attachment, and the plaintiff’s damages were assessed, by a jury, at one hundred and sis 37-100 dollars, for which sum judgment was rendered against the said Cater, as well as for the costsof suit. At the same term, •judgment was rendered against Smith, the garnishee, for the sum of one hundred and nine dollars, on his'answer made at the previous term. To reverse this judgment, Smith now prosecutes his writ of error to this court, mid here insists that the judgment ' rendered against him is erroneous—

1st. Because of the irregularity of the proceedings against the defendant in attachment:

2d. Because no process of garnishment, was served on him:

3d. Because no debt is admitted to he due, by his answer, for which tlie court could render a judgment. ■

The first point on which the plaintiff in error relies, has received the repeated adjudication of this court. In Stebbins vs. Fitch,^* it was determined, that the garnishee cannot be permitted to take advantage of any irregularity in the proceedings between the parties to the attachment. The same rule was reiterated, in Thompson vs. Allen.^†

The second position, is also untenable. The garnishee answers without objecting to any defect in the process against him, and cannot now be permitted to allege that he was not served according to the forms prescribed by law. The case of Lawrence, Rapelye & Co. vs. Ware,^* was on a writ of error, prosecuted by the defendant in attachment, and the court there decided, that inasmuch, as there was no service by a levy on property, or any legal garnishment, the proceedings could not be supported..

The only remaining point to be noticed, is the one of the most importance; and it presents a question of some difficulty, which lias heretofore been collaterally before this court; but on which no opinion has hitherto been rendered necessary. In the the case of Allen vs. Morgan,^† the garnishee' answered, that he was indebted to the defendant in attachment, by note, but had offsets, and could not know until a settlement was liad, how the balance was. It was decided that a judgment could not be rendered against him, on this answer. So in the caso of Presnell vs Mabry,^‡ the garnishee admitted that he was the administrator of an estate, of which the defendant in attachment, was a distributee; and that he had funds of tlic estate in his hands, but that he was informed, that the defendant in attachment, had assigned his interest in the estate to another: it was held that no judgement could he rendered. In each of these cases, it is probable that the attaching creditor might, under the attachment ,laws, have acquired by his attachment, some rights of priority, hut because no debt was admitted by the answer, to be due and payable, a judgment couldnot be rendered.

In the present case, the garnishee does not admit, that he owes the defendant in attachment, any sum of money whatever; hut that he is indebted to him in a certain sum, to he paid in store accounts, then due.' The Circuit court, had no authority under the law,fto change the liability of the garnishee, and make him liable as for a money demand; and it is no answer to this objection, to allege, that unless lie can sustain this judgment, the plaintiff in attachment will be remediless; for although it may not be a case, which is within the attachment laws, it does not follow that there is no remedy.

This is certainly not the case of indebtedness to the defendant in the attachment, for specific property; nor is it a possession by the garnishee of property, goods, or effects, which can be delivered to the officer, serving the attachment, within the terms of the nineteenth and twenty-second sections of the attachment laws. The officer would have no authority to sell, nor the court, as a court of law, to order the sale of the accounts, if the garnishee ivas authorised to deliver them.

The case is one which is not met by any statutory enactment, so far as relates to the disposition of -the demands, although it is clear that the attaching creditor is, by the levy, entitled to a priority of satisfaction, out of those demands as a part of the estate of his debtor; but the Circuit court, as a court of law, cannot make any order, which can meet the exigency of the case; and the only proper mode would be, for the plaintiff in the attachment, to proceed in equity, to have the demands assigned, and collected for the satisfaction of his judgment.

The judgment rendered by the Circuit court, must be reversed; and if desired, the cause will he remanded, in order that other proceedings may be had, not inconsistent with this opinion.

* 1 Stewart, 180.

† 4 Stewart & Porter 184.

* 1 Stewart 33.

† 1 tew.9.

‡ 3 Porter 165.