Sheppard v. Buford

COLLIER, C. J. — The act of 1840 provides, that when a garnishee answers that he “ has received notice of the assignment or transfer of the debt or property in respect to which the garnishment is issued, the Court shall not render judgment against the garnishee, but shall suspend proceedings until the validity of the assignment is litigated. And in order that the question may be tried, it is directed that a notice issue to the party to whom the assignment or transfer is alledged to have been made, which “shall be served at least five days before the matter shall be heard.” “ If the question shall be determined against the party claiming such debt or property, so alledged to be transferred, then the Court shall render judgment final against the garnishee, reserving to said garnishee, his expenses as is now provided for by law ; and also reserving to the said garnishee, and to all the parties contesting said question the right of appeal or writ of error.” Further — “If two notices shall issue to the party alledged to be the assignee or transferree of any such debt or property, and the same shall not be returned not found, then the Court before which said garnishment is pending, shall proceed to render such judgment as is right in the matter, having due regard to the laws regulating assignments, and judicial or original attachments.” Lastly — “ In case the party who shall be alledged to be the assignee or transferree of the debt or property embraced in the garnishee’s answer is a nonresident, then the Court shall order publication for six months, before proceeding to consider the question litigated between the parties.” [Clay’s Dig. 63, § 39, 40, 41 ; 64, § 45.] The effect of the provision which authorizes the Court to proceed against the garnishee and assignee, when two notices have been returned not found, is limited by the subsequent section, which requires publication to be made for six months, when the assignee or transferree is a non-resident. In the ease at bar, the assignee was a non-resident, and it was not competent for the Court, upon the return of the notices unexe94 cuted, to direct an issue to be made up between him and the plaintiff in execution, and thus litigate and determine his rights. This irregularity was not cured by the subsequent appearance of the assignee, by an attorney. This though a voluntary act, could not expurgate to error which coerced the as-signee to such a course. In Butler & Alford v. O’Brien, (5 Ala. Rep. 316,) it was decided that if a creditor receives of his debtor a note, which a third person gave to the latter on the purchase of goods, if the creditor was cognizant of the consideration of the note, when he became its proprietor, or retained it as his own, after he acquired' such knowledge; in neither case will he be allowed to show that the sale of the goods was fraudulent, with the view of subjecting them to the payment of his debt. The principle of the case cited, is strikingly applicable to the case before us, and very clearly shows, that if the plaintiff in execution, with a knowledge that E. Sheppard became the proprietor of accounts due by sundry persons, under a transfer by W. P. Sheppard, in consideration of the assignment of a debt due by Wellborn to the former, obtained judgment against the persons by whom those accounts were due, as the debtor of E. S., he cannot be permitted to insist that the assignment of Wellborn’s debt was fraudulent. So if he recovered such judgments without a knowledge, that the persons against whom they were rendered, became the debtors of E. S. by assignment of W. P. S. as an equivalent for Wellborn’s debt, he should upon being informed thereof, relinquish the judgment, or offer to do so, if he would charge Wellborn as the debtor of E. S. The first charge given, was such as the assignee prayed, and is unobjectionable in itself. The second charge asked, supposed that a knowledge of the transfer of the demand against Wellborn, although the plaintiff in execution knew nothing of the accounts being transferred as equivalent therefor, would make the garnishment of the persons by whom those accounts were due, or the debtors of E. S., equivalent to a confirmation or approval by the plaintiff in execution of the transaction between E. S. and W. P. S., and estop the plaintiff from showing that it was fraudulent. This instruction was properly refused; because it considered as unimpor [95] tant a knowledge of the circumstances under which E. S. became the proprietor of the accounts. The last charge given was strictly correct, and expressed in terms of marked accuracy, the law as we have laid it down. But upon the first-point raised, we have seen that the Court misapprehended the law, in adjudging that the return of two notices not found, was equivalent to personal service, on a non-resident assignee. •The judgment is consequently reversed, and the cause remanded.