McDougald v. E. Barnard & Co. , 3 Ga. 169 ( 1847 )

By the Court.

Lumpkin, J.,

.delivering the opinion.

Money was brought into court arising from the sale of ‘Benjamin Hurd’s property. Various attachments had been levied on the property at different times. That of E. Barnard & Co.,which was among the oldest, was served the 7th of February, 1846. That of McDougald, the plaintiff in error, on the 18th day of the same month. McDougald got the first judgment, his debt being for rent; and the only question made before us is, whether it is the levy of the attachment, or the judgment obtained thereon, which fixes the lien on the fund to be distributed. The decision must depend alone upon the construction of our own statutes.

[1.] By the Judiciary act of 1799, it was the judgment which fixed the lien on the defendant’s property, in all cases. Where these were of equal date, the first execution delivered to the sheriff was to be first satisfied. By the statute of 1822, (Prince 451,) this preference was taken away, and all judgments founded on verdicts rendered at the same term of the court, were considered, held and taken to be of equal date.

Prior to this period, to wit, in 1814, the legislature thought proper to regulate the lien of attachments, as between themselves; and this it effected by a single line. “ In all cases the first served shall be first satisfied,” was the terse and perspicuous enunciation of the law. Prince 34.

Had the act stopped here, there never could have been any contrariety of opinion as to its meaning. But the following section declares that “ no lien shall be created by the levying of the attachment, to the exclusion of any judgment obtained by any creditor, before judgment is obtained by the attaching creditor.” Ib.

In behalf of the plaintiff in error it is argued, that the words “ any creditor,” in this section, are comprehensive enough to include attachment creditors, and actually do embrace them. If this be so, then the two sections are in opposition to each other, and the seventh is wholly nugatory, and the lien is left just where it was in 1799, namely, to be fixed by the date of the judgment in all cases.

. Let us now write out in words this fancied reading of the statute, and its absurdity will be manifest. “ No lien shall be created by the levying of an attachment to the exclusion of any judgment obtained by any creditor,”, [either by attachment or ordinary suit,]— “before judgment is obtained by the attaching creditor.” It will be at once perceived that the antithesis is destroyed. Two classes of creditors were evidently intended to be put in contrast by the statute, namely, creditors by attachment and creditors by ordinary suit. But this design is not only defeated, but the whole sentence converted into nonsense by this false reading; whereas, by adopting the other construction, all confusion is gotten rid of. We believe that “ any creditor’’ in the eighth section, means creditors by ordinary suit, and the section will then read, “ no lien shall be created by the levying of an attachment, to the exclusion of any judgment obtained by any creditor,” [in ordinary suits,] “ before judgment is obtained by the attaching creditor.”

The legislature in the 7th section, for obvious reasons, having greatly innovated in cases of attachment upon the law of lien, making it to depend upon the levy instead of the judgment, intended by the eighth section to repel the idea that the same rule should apply to cases of conflict between attachments and ordinary judgments.

So that now, in all collisions between attachments, it is the levy which fixes the lien, and the one first served shall be first satisfied.

And in contests between attachments and ordinary suits, [2.] it is, as it was from 1799, the judgment and not the levy which fixes the lien.

But, it is objected that this interpretation will occasionally involve the courts in an inextricable dilemma. As, for instance, suppose an ordinary judgment were to intervene in the present case, between these attachment judgments, whose would the money be % This difficulty has occurred, and may, and probably will, arise again, in practice. It only shows that it was not foi’eseen when the act of 1814 was passed ; and whiie it demonstrates, perhaps, that the law is defective, it cannot control the construction. For the well-known and familiar rule is, that the argument from inconvenience may have considerable weight upon a question of construction, where the language is doubtful; for it is not to be presumed upon doubtful language, that' the legislature intended to establish a rule of action which would be necessarily attended with great inconvenience. But where the language is clear, and of course the intent is manifest, the court is not at liberty to be governed by considerations of inconvenience. We leave this knot therefore, to be disentangled or cut at a future time, unless in the interim those who have the right should see fit to speak authoritatively upon the subject. “ Sufficient unto the day is the evil thereof.”

Let the judgment of the Court below be affirmed.