Whaley v. Cunningham

By the Court— BROWN, C. J., delivering the opinion. The only question in this case is, what is the proper construction of section 3489 of the Revised Code, which is in these words: “All money raised by virtue of process of garnishment under this Code, shall be paid over to the creditors of the defendant, according to the priorities now established by law, the expenses of the moving creditors being first paid pro rata, by the judgment creditors receiving the benefit of his diligence.” In this case the contest was between two creditors. And it is admitted that the judgment of Whaley, the plaintiff in error against Cunningham, is older, by two or three months, than the judgment of the Augusta Manufacturing Company. But the latter, by summons of garnishment upon Carmichael, pendente lite, brought the money into Court. And the dispute is as to the right of the junior judgment creditor to have his costs and attorney’s fees, in his original action against Cunningham, paid out of the fund. It is admitted that he is entitled to his expense in the garnishment, but not his expense in obtaining the judgment against the defendant. We think he is entitled to his necessary and legal expenses in both, as they are in fact connected and one cannot be made effective without the other. As a general rule, a garnishment pendente lite is not sued out when the defendant is considered solvent. And, in case of an insolvent debtor, probably the plaintiff would not be willing to.incur the expense necessary to obtain a judgment, if he did not look to the garnishment as a probable means of securing the debt. But he can not make the money on the garnishment without first bringing suit against the defendant. Nor can he take judgment against the garnishee, till he has first obtained judgment against the defendant, who is his debtor. And as he must necessarily incur the expense of obtaining judgment *against the defendant before he can bring the money into Court, by virtue of the garnishment, we think he is entitled to have the expenses of the whole proceeding paid, before an older judgment creditor is permitted to come in and take the fund which he has brought into Court by his diligence. Judgment affirmed.