Camp v. Hatter

GOLDTHWAITE, J. 1. When an attachment is levied -by garnishee process, the lieh created by it attaches at the [155] time of the summons, and the right of the debtor to make a transfer is at once interrupted. A consequence of this principle is, that the issue between the garnishee and the attaching creditor, puts in question his indebtedness at that time. Our statutes permit the garnishee to suggest, that the interest in the attached debt has been transferred to another ; and the creditor is allowed to substitute the transferee in the place of the garnishee, by giving him notice. [Dig. 63, § 39, 40.J It is evident, as it seems to us, that the transferee of a debt when summoned under the statute, stands precisely in the condition of a purchaser from the debtor in attachment, and in consequence of this relation, is compelled to show that his title to the attached debt accrued before the lien of the attachment was rendered effectual by the summons of the garnishee. A different rule would place the purchaser or as-signee of a debt in a more favorable condition than the purchaser of other chattels. We have no hesitation then in coming to the conclusion that this issue was properly directed, as it puts the question of transfer so as to relate to the time of the summons. 2. It is true the summons to the transferee in this case was ordered to be issued at a subsequent term to that when the answer came in, but we think this was sufficiently regular. The principal suit was not then finally disposed of, or rather it was then that a judgment was given against the debtor in attachment, and until then the necessity for ulterior proceedings against the garnishee, or transferee, could not be certainly known. ■ We have heretofore held, that a judgment against the garnishee, or other proceedings tending to a judgment, may be taken at the term when judgment is given against the principal debtor. [Leigh v. Smith, 5 Ala. R. 583.] 3. With respect to the charge asked, as well as the one on which the cause was submitted to the jury, we think there was no error. The indebtedness of the garnishee was admitted by his answer, and as the transferee, Camp, claimed an interest in the assigned note, superior to the right of the plaintiff in attachment, it rested with him to show it affirmatively. Indeed, to hold the party to proof, that the note was not assigned when the garnishment was served, would be to impose proof of a negative. In the correlative case of a levy [156] on personal estate, which is claimed by a stranger, the proof is cast on him to support his • claim, after the plaintiff has made a prima facie case, by evidence that it once belonged to the execution debtor. We think the same principle holds good when the contest is between the creditor and the assignee of a debt. [Davis v. Clayton, 5 Hump. 446.] 4. When Camp contested the right of the plaintiff to condemn the debt in the hands of the garnishee, he became a party litigant to the proceedings, and in that character liable for costs if unsuccessful. Hence he is only condemned to the costs arising out of the contest, and this we think entirely proper. In other respects the judgment entry seems open to no objection, as it condemns the debt in the hands of the garnishee to the payment of the principal judgment and costs. On the whole case we can see no error. Judgment affirmed.