King v. Carhart, Bros. & Co.

By the Court. Benning, J. delivering the opinion. These two cases of King vs. Carhart, Brothers & Co. and Ells vs. Carhart, Brothers & Co. were argued, together and were considered together. The reasons urged against the validity of the judgments rendered in the cases, respectively, by, the Court below, were the same in both cases. These reasons were-— 1. That a debt secured by a negotiable paper, is not the subject of garnishment. 2. That if such a debt is the subject of garnishment at it is not the subject of garnishment, after the. note by which it is secured has been negotiated; and • that, in these cases, the debts which the garnishors were seeking to make the subjects of garnishment, had, as appeared from the answers of the garnishees, been negotiated before the service of the garnishments. The sufficiency of these reasons depends, mainly, on the import of a part of the Act of 1799, “to regulate attachments.” That part is in these words: “and it shall be the duty of the Sheriff, his Deputy, or any Constable, to serve and levy the same upon the estate, both real and personal, of such debtor, wherever the same may be found, either in the hands of any person indebted to or having effects of such debtor, and summon such person or persons to appear at the next Court to be held for said county, and to which the said attachment may be returnable, there to answer, on oath, what he is indebted to, or what effects of such party he hath in hands, or had, at the time of levying such attachment, which, being 'returned executed, the Court may, by order, compel such [654] person to appear and answer as aforesaid; and where any person, in whose hands any debt or effects may be attached, hall deny owing any money to, or having in his hands any effects of such debtor, it shall be lawful for the plaintiff to traverse such denial; and thereupon, an issue shall be made up, and the same be tried by a Jury; and if found against such garnishee, he, she or they shall be subject to pay the plaintiff such sum as shall be so found, and the Court shall cause judgment to be entered thereof, against such garnishee, as in other cases.” (Pr. Dig. 31.) According to these words, every sort of debt is the subject of garnishment; and a debt secured by a negotiable instrument is a sort of debt; therefore, according to these words, a debt secured by a negotiable instrument, is the subject of garnishment. But it is said that to permit such a debt to be reached by garnishment, would sometimes be to expose an innocent man to the hazard of having to pay a debt twice. Be that so. .Still, if the words of a Statute declare, without ambiguity, that such a debt may be reached by garnishment, such a debt must be held to be subject to garnishment; for when there is no ambiguity in the words of a Statute, the argument from the words, over-rides the argument from the effect and consequences. Besides, not to permit such a debt to be reached by garnishment, would, itself, be any thiñg but an unmixed good. It would be to deprive creditors of what, in many cases, would be their only means of collecting their debts. [1.] We think, therefore, that this, the first reason, was not a sufficient one to show the judgments of the Court below erroneous. As to the second reason. It was not insisted that the Court below held that a debt secured by a negotiable instrument, was, after the instrument had been transferred, the subject of garnishment, in a suit against the assignor. The Court, doubtless, held the reverse. The difference between the Court below and the Counsel for the garnishees, seems [655] to have been as to the second branch of the reason — the inferential part; the Counsel insisting that the answers showed that the notes had been transferred before the garnishments were served — the Court considering that the answers did not. In the case of King, the Court rendered a judgment against him, in respect to one of the notes only — that for $1161TS^. As to this note, the answer which King was finally prepared to make, and which he offered to make, substantially, was, that before service of the garnishment, the note had been transferred by Graybill, the debtor, to one Peddy, to secure Peddy against loss, on account of a securityship he was under for Graybill, on a note of Graybill’s, for about $1500. This answer the Court would not receive, considering it not to be such as would show that the garnishee “ was not indebted to the defendant in the suit, the amount of” the note. [2.] Was this refusal of the Court right ? In other words, does the transfer of a negotiable note, as collateral security, carry the legal title of the debt to the transferee ? It does. And that has been decided by this Court in two cases — Gibson and another vs. Conner, (3 Kelly, 47,) and Hall vs. Page, (4 Ga. R. 428.) Such a transfer, therefore, puts the note beyond the reach of a garnishment, at the suit of a creditor of the note; that is, if the transfer be made before the garnishment has been served. The Courts therefore, should have allowed -King to make the amendment to his answer, which he offered to make. This disposes of the case of King. Ells, the garnishee in the other case, answered that he was “well satisfied” that one of the notes, in respect to which he had been summoned as garnishee, had been transferred before he was so summoned. Notwithstanding this answer, the Court gave judgment against the garnishee, in respect to this note. Was this judgment right ? It was certainly so, if the garnishee’s answer amounted to an admission that he owed the debtor this note. Now the garnishee’s answer was not an admission of this, [656] if any value is to be attached to the belief of the garnishee-And we think that somewhat of value is to be attached to the' belief of a garnishee. Garnishment is but, a substitute for a proceeding in Equity —a proceeding in which the belief of the answering party receives a degree of credit. If the defendant to a bill inEquity answers that he believes that an allegation, essential to the plaintiff’s case, is not true, the plaintiff must prove that allegation before he can get a decree in his favor. And whatever reason there is why this should be so in a proceeding in Equity, there is that it should be so in a proceeding, by garnishment, at Law. In either proceeding, the plaintiff makes the other party, his witness. Doubtless, in the proceeding in Equity, the plaintiff would.' have the right to call for the grounds of the other party’s belief; and if they, when got, were not sufficient, in Law, to support that belief, to ask that the belief should be disregarded : and if they were sufficient, in Law, to support the belief, to ask for an opportunity to prove them untrue, in fact. And so, in the proceeding at Law by garnishment, the plaintiff would have the right to pursue the same course. [3.] But in this case the plaintiff in garnishment took no exception to the answer, on the ground that it did not state the garnishee’s reasons for his belief. He accepted the answer as it stood; and he thereby admitted, that it was true that the garnishee, himself, was “well satisfied” that he did-not owe to the debtor the note in question. And this garnishee was a person who was his witness; and moreover, a person who had nothing to gain by stating a falsehood as to his belief, for he had admitted that he owed the note to somebody. In such a case, we think the presumption • ought to be, that-the garnishee has some good reason for his belief; otherwise, the plaintiff in garnishment would call for the reason. If we .are right in this, the plaintiff ought not, in such a case, to be allowed to have judgment against the garnishee, without at least making up an issue with him on his answer; and on that issue, proving him to have no foundation for his belief. It is = [657] the garnishee that, in such a case, ought to have the benefit of’ the doubt. Indeed, I may say for myself, that if a garnishee does not-distinctly admit that he owes the debtor money, or that, he has something of the debtor’s in his hands, no judgment can, in my opinion, be taken against him without the intervention, of a Jury, unless the garnishee choose to waive the intervention of a Jury. If, in his answer, he barely says that he does not believe that he owes the debtor, &c.; or even if, in addition to-this, he gives only some insufficient reason for his belief; still, I think he has the right to go before a Jury on the question, whether he does owe the debtor, &c. or not. This I think his right, under the law of Jury trial. And this, if aright, may be one of great practical value, for the garnishee, on an issue before a Jury, might be able to prove, beyond a doubt, what, without an issue, he could only conjecture. If the garnishee in this case, could have had a chance to examine the debtors themselves, before a Jury, he could have forced them to say the truth as to the negotiation of the note. They could have told what the truth was, and as witnesses on such an issue, they would have been forced to tell. The person who is sued in garnishment, by the creditor of his creditor, is net-, it appears clear to me, in a worse situation than that in which he would be, if he were sued in the ordinary form, by his creditor himself. But if he -viere sued in the ordinary form by the creditor, himself, that creditor could not get a judgment against him at all, unless he confessed a judgment to that creditor, or a Jury found a verdict for the creditor. Ought not.the garnishee’s answer, then, on which a judgment is to be entered up against him, to be of the nature of a confession of judgment ? I think it ought.