Evans v. Norman

COLLIER, C. J. -The act of 1840, “ to amend the law [665] in relation to garnishments,” enacts, that “ when a garnishee, in any case of judicial or original attachment, shall answer, that previous to the time of such answer, he or she has received notice of assignment or transfer of the debt or property, in respect to which the garnishment is issued, it shall not be lawful for the court to render judgment against the said garnishee, on the ground of the invalidity of the assignment or transfer of the debt or property; but the court before which the garnishment is pending, shall suspend proceedings against said garnishee until the question is litigated as provided for in the following sections of this act.” It is enacted by the second section, that upon the coming in of the answer, if the plaintiff desires it, a notice shall issue to the alledged assignee or transferee to contest the validity of the transfer or assignment, “which notice shall be served at least five days before the matter shall be heard; and 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 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 as-signee or transferee of any such debt or property, and the same shall 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 and original attachments.” Again: “ In case the transfer shall be found-legal, the garnishee shall be discharged, and costs shall be rendered against the plaintiff; and if the claim is found against the claimant, the costs shall be given against said claimant.” If the alledged assignee or transferee shall appear to be a non-resident, u then the court shall order publication for six months, before proceeding to consider the question litigated between the parties.” Clay’s Dig. 63, 64, § 39, 40, 41, 43, 45. Previous enactments gave to judgment creditors the process of garnishment upon a return of “no property found,” [666] or ou affidavit, that the defendant has no property within the knowledge of the affiant in his possession, &c.; and the garnishee in such case shall be proceeded against, “itythe same manner as required by law against garnishees in original attachments.” Clay’s Dig. 259, § 1 to 7. Under the influence of these provisions, it has .been held that the proceedings contemplated by the act of 1840, extend to garnishees who are summoned as the supposed debtors of a defendant in a judgment. McCain v. Wood, 4 Ala. Rep. 258. Now, although the act declares that if two notices to the assignee or transferee shall be returned “not found,” the court “shall proceed to render such judgment as is right in the matter,” it was not competent for the court mero motu■ to direct an issue to be made between the plaintiff and the as-signee or transferee, and upon a verdict being found against the latter, to cause a judgment to be rendered against him for the cost. The statute provides that in rendering a judgment on such returns, “due regard” shall be had “to the laws regulating assignments, and judicial and original attachments.” It must be left to the discretion of the assignee or transferee, even where he has had personal notice, whether he will contest the validity of the assignment, and if he refuses to cdme in and make up an issue upon the point, all that the court can do, is to cause his default to be entered of record, and proceed as if he claimed nothing under the assignment. Surely no greater power can be exercised by the court, where a notice Has not been served. Whether the assignee will join in the issue, must be left to his volition, otherwise he might be bur-thened with costs, when he asserted no claim to the money or effects sought to be reached by the garnishment. The disclosure of his name by the garnishee, may prevent a judgment from being entered against him upon his answer; until the proceedings contemplated are had against the assignee, bht is no evidence against the latter that he claims under the Assignment. , Here the answer discloses the names of two indorsees,'-whose names appear on the note of which the defendant hi attachment is the payee, and if they claim an interest under the several indorsements, and are assignees within the meaning of the statute, it was not only necessary to issue a notice [667] to the second, but to the first indorsee also. Each is interested prima facie, to defeat an appropriation of the money in the garnishee’s hands, to satisfy the plaintiff’s judgment. The act of 1840 is remedial, and beneficial in its provisions, and should not be literally interpreted, but should receive such a construction as will advance the intention of the legislature in expediting and definitively adjusting the rights of all parties in the matter in litigation. We therefore think the previous decisions of this court sustain an interpretation so liberal, as to extend its provisions to the indorsees whose names are disclosed by the garnishee. See Fortune v. The State Bank, 4 Ala. Rep. 385; Covington & Reavis v. Kelly, use, &c. 6 Ala. Rep. 860. Assuming, then, that the verdict and judgment against the assignee concluded no question of law or fact arising upon the answer of the garnishee, and that the two returns of “not found,” only authorized the plaintiff to proceed against the garnishee as if the assignee had refused to come in and assert a right to the money, and the question presents itself, whether a judgment should have been rendered in favor of the plaintiff upon the answer. It would be a sufficient objection to the rendition of such a judgment, that the first indorsee was not brought before the court. That garnishee does not admit, that irrespective of the rights of Sutherlin, the money in his hands, is liable to satisfy the plaintiff’s judgment. He does not know how this may be, until other cases in which garnishments shall be served on him, shall be determined. It is not stated when these other garnishments were served, and the amount of money they seek to attach, but upon these points, the garnishee reserves to himself the right to amend his answer by a specific disclosure. The failure to make such an amendment may authorize the inference that the . plaintiff’s garnishment was entitled to priority of satisfaction. ;If this be so, and both the indorsees had been brought in as the statute provides, and did not join in the litigation, we can discover no objection to rendering a judgment against the garnishee upon the implied admissions of the answer. To conclude, the judgment against the garnishee cannot be sustained, because the first indorsee of the note collected by him was not brought before the circuit court as the statute [668] directs: and as the assignee to whom the notices issued did not appear and join in an issue, he could not be charged with costs. Consequently, the judgment against each of these parties is reversed, and the cause remanded.