Hoskins, Huskill & Co. v. Johnson & Garrett , 24 Ga. 625 ( 1858 )

Benning, J.

By the Court. delivering the opinion.

The debt which the two competing garnishments were in pursuit of, was a debt due from a partnership composed of two persons, C. Cothran & A. M. Sloan. These persons were both living.

These facts sufficiently appeared upon the face of the proceedings in each garnishment.

One of the two garnishments, that of Hoskins, Huskill & Co., was sued out against the partnership of Cothran & Sloan; the other, that of the Bank, was sued out against Sloan only.

Which of the two, attached the debt ? This is the question.

The situation which the garnishing plaintiff occupies in respect to the garnishee, can be no better than that which the defendant himself occupies in respect to the garnishee. If the case be one in which the defendant himself, if suing the garnishee, could not get a judgment against the garnishee, it is one in which the garnishing plaintiff cannot get a judgment against the garnishee. This must be manifest.

Garrett was the defendant in the bank’s suit. Suppose the garnishment against Sloan had been a suit by Garrett to recover the debt, and that in his declaration, he had let it appear that the debt was due from Cothran and Sloan, and that Cothran was still living, could he succeed ? ^

“Butin the case of defendants, if a party be omitted, whether he be sued upon a personal contract, or as pernor of the profits of a real estate, as in debt for a rent charge, the objection can only be taken by plea in abatement verified by affidavit, unless it appear on the face of the declaration, ox-some other pleading of the plaintiff, that the party omitted is still living, as well as that he jointly contracted, in which case the defendant may demur, or move in arrest of judgment, or sustain a writ of error.” 1 Chitiy PI. 29.

This, no doubt, is good law; and being so, Garrett could not, in the case supposed, recover of Sloan. It must follow, that if he could not recover of Sloan in the casé supposed, neither can the bank recover of Sloan in the actual case.

Again, there can be no doubt, that if this was a partnership debt of Cothran & Sloan, and Sloan only was sued for it, he might piece? Cothran’s non-joinder in abatement,{Chitty supra;.)

Does not Sloan’s answer to the garnishment amount to such a plea? It is on oath; it states that the debt is due from Cothran and Sloan; it is put in for Cothran & Sloan it represents Sloan, as one of the firm of Cothran & Sloan ; when speaking of that firm, it uses language of this sort,. “these respondents;” “themselves;” “our;” “they;” “their;” coupled with verbs in the present tense.

Finally, say, however, that this answer was not intended by Sloan as a plea in abatement; yet, as it discloses the facts on which such a plea might rest, may not Hoskins, Huskill & Co. avail themselves of it in their competition with the bank ? Why would these facts be good, if relied on as such plea in abatement ? Only because they are such as to show the debt to be one that, really, is not duefrom Sloan. A debt due from Cothran & Sloan, is a debt which is not due from Sloan. But a garnishment .against Sloan alone, is a thing that can reach no debt, but a debt due from Sloan. In strictness, then, it would seem that the reason why these facts might be relied on by Sloan as a plea in abatement, is a reason why they may be relied on by Hoskins, Huskill & Co. to show that the bank is not entitled to judgment against Sloan, and that they, Hoskins, Huskill & Co. are.

[1.] Upon the whole, then, we think that the debt owed by Cothran & Sloan was not attached by the garnishment of the bank, which was against Sloan only; and was attached by the garnishment of Hoskins, Huskill & Co., which was against Cothran & Sloan.

Consequently, we think that the judgment of the Court below, ordering the money held by Cothran & Sloan, to be paid to the bank, was erroneous.

This money was due to Garrett, not to Johnson & Garrett. And the suit of Hoskins, Huskill & Co. was against Johnson & Garrett, while that of the bank was against Garrett. Still this fact does not help the latter suit. Its garnishment being against Sloan, instead of being against Cothran & Sloan, that suit never attached the debt at all. The question, therefore, as to whether, when there is a debt against a partnership, and a debt against one of the partners, the former debt is to share equally with the latter in this partner’s separate property, cannot arise.

I may remark, however, that according to Dennis vs. Green, (20 Ga. 386,) the two debts are to share equally in the partners’ separate property.

[2.] A partner’s separate property is bound alike by all judgments against him, whether they be judgments against him as an individual, or judgments against him as a partner. And therefore, it must follow, that both kinds of judgments will share equally in the proceeds of his separate property. But as to the proceeds of the partnership property, the case is different. There is in respect to this property, an equity among the partners themselves that requires the property to be applied first to the payment of the partnership debts. And, practically, this equity works in such a way as to give debts against the partnership a preference over debts against a partner, in respect to that partner’s interest in the partnership effects. I mention this distinction because it was not adverted to in the decision of Dennis vs. Green, (supra) and because the reasoning on which that decision goes,implies, that the distinction does not exist. The reasoning is wrong; the decision, however, is right; the case was one involving the disposition of the separate property of a partner.

Judgment reversed.