Farmers' & Mechanics' Bank v. Little

The opinion of the Court was delivered by Gibson, C. J. It is said the garnishee of a debt may plead anything against the plaintiff in the scire facias that he could plead against his own original creditor, except that the debt is not presently demandable; and even that may be pleaded by him in stay of execution. In no other respect does the attaching creditor stand on other ground than that of the creditor for whom he has been substituted by the attachment as a statute assignment or execution. The judgment in the attachment suit establishes no more than the existence of the debt claimed by the attaching creditor from his immediate debtor; and the garnishee may therefore plead either that he owes nothing to any one, or that the ownership of the debt demanded from him had passed from his immediate creditor by assignment when the attachment was laid, or that the attachment had been dissolved by his death before final judgment. In Walker v. Gibbs, (2 Dall. 211), he was allowed to plead a prior assignment; and he may for the same reason plead a prior attachment. (Serg. on Attach. 101, Priv. Lond. 254). It never has been doubted that the defendant’s death before final judgment dissolves an attachment; and it was said by Mr Lewis, arguendo without contradiction, in Ludlow v. Bingham, (4 Dall. 60), that the effect is not prevented by an interlocutory judgment, because there are no longer the proper parties. Indeed Mr Dallas expressed a doubt in a note appended to his report of the case, whether death is not a dissolution of the suit even after final judgment ; which was not resolved till the point came up in Fitch v. [220] Ross, (4 Serg. & Rawle 557), when it was held that it was not, as the defendant’s representatives may come in and disprove the debt. Now as the garnishee can pay safely only on compulsion, he is bound to contest every inch of the 'ground; and that he is competent, as a stranger, to take collateral advantage of irregularities in signing judgment in the attachment suit, was ruled in Pancake v. Harris, (10 Serg. & Rawle 109). But the primary intent being to procure an appearance, a foreign attachment is dissolved the instant the defendant has appeared or lost his capacity to appear, because the law exacts not impossibilities; and this shows that the attaching creditor gains no property in the thing by laying the attachment. It is security for the defendant’s appearance merely; and it is released as soon as the condition has been performed or become impossible. It results that the important, perhaps the only necessary question, is whether the attachment was dissolved before final judgment in it, by the civil death of the defendant; for if the Atchafalaya Railroad and Banking Company stood dissolved by judgment of forfeiture in the court of first instance, the judgment by default in the attachment suit was erroneous; and the agreement filed in the scire facias suit is broad enough to let it in without pleading it as matter of defence. Judgment in the attachment suit here was signed on the 10th December 1842; and the petition for judgment of forfeiture had been filed in the court of first instance at New Orleans, the 9th March in the same year. A citation and writ of sequestration instantly followed; arid the corporation put in its answer the next day, confessing the forfeiture of its charter for failure to complete its railroad in the time limited by the act of incorporation; whereupon the court instantly adjudged that the charter be forfeited for the fact confessed; that the corporation be dissolved; and that its property be put under the administration of the Board of Currency. This judgment was pronounced ten months before judgment of default was signed in the attachment suit, and it remained intact, not only till then, but till nearly three months afterwards. On the 1st March 1843, a creditor of the corporation was allowed to appeal from it on an allegation of error, and on giving the requisite bail. By the laws of that State, it seems, a suspensive appeal which prevents the judgment from going into effect, must be táken within the space of ten days; a devolutive appeal which has -no suspensive effect, may be taken at any time within a year. The judgment of the court of first instance had been pronounced on the tenth of March 1842; so that there was barely time for a devolutive appeal. It is seen therefore that when judgment was signed in the attachment suit, the defendant was defunct by the sentence of a court of competent jurisdiction, not only unsuspended, but actually unappealed from at the time; its charter was annulled ; its corporate existence extinguished; and what remains is to inquire whether these were subsequently restored, and the cor [221] poration’s intermediate existence judicially established as if there had been no forfeiture, by the subsequent action of the Supreme Court. The judgment of forfeiture was reversed for no vice in itsqlf, but for a mental abstraction of the judge; and a common law student would be disposed to ask, why reverse because the judge thought wrong if he acted right; or for an abstract error which did no harm ? or why sweep away the sequestration with the intermediate acts of the Board of Currency and its successors by unravelling the web to take up a dropt stitch which did.not injure the texture ? He might doubt, too, whether the simultaneous repetition of the same judgment, though based on a different abstraction, were not a substantive affirmance which left the original judgment, the writ of sequestration, and all things done by virtue of it, exactly as it found them. However that may be, it is certain the judgment of forfeiture and corporate extinction, was in force when the corporation was defaulted for want of appearance in the attachment suit; and what was the effect of its reversal on the proceeding here 1 That question is determinable by the law of the forum, not of the place. The law of Louisiana might possibly restore the dead to life there, but not elsewhere; and though the reversal of a judgment of dissolution may cure the want of an intermediate capacity to sue and be sued in the courts of that State, it cannot cure the want of such a capacity in the courts here. What then is the effect of such a reversal at the common law ? The rule laid down in Drury's Case, (8 Rep. 142 b), is that collateral things executory stand as if the reversed judgment had never been in force; but that collateral things executed are not devested. It was consequently held that the reversal of a judgment against a debtor in execution, is no reversal of a judgment against the sheriff or gaoler for his escape. In Appesley v. Ive, (Cro. Jac. 645), it was held that the reversal of judgment against a principal is no reversal of judgment against his bail. The principle has been established by many decisions; and it leads to the inevitable conclusion that the reversal of the judgment which had dissolved the foreign attachment by dissolving the existence of the defendant, did not restore it to the case of an action pending by relation to the time when the defendant in the attachment was defaulted, .or make the judgment against him the less a judgment against a party defunct. The attachment therefore was as effectively dissolved, at the time, by the extinction of the defendant’s corporate existence, as if its civil death had been suggested on the record, for there was no party in court to suggest it, and the plaintiff himself proceeded on that ground when he signedf judgment for default. The attachment was therefore at an end, and the plaintiff’s hold on the property gone. This view of the case relieves us from considering how far it was vested in the Board [222] of Currency, or its successors, the commissioners, by the proceedings in Louisiana; or how far it was privileged from attachment as being in the lap of the law. If the attachment were legal in the first instance, it ceased to be so at the termination of the defendant’s civil existence; and this is all that is necessary for the decision of the cause before us. Judgment reversed, and a venire de novo awarded.