McClellan v. Young

PARSONS, J. This action was brought upon a promissory note made by Young and payable to A. J. McClellan, bearing date the 22d December 1847. It appears that it was made in consideration of land sold by Henry McClellan to Young, and it was delivered by Young to Henry McClellan when it was made. It was made payable to A. J. McClellan, by' direction of Henry McClellan, who said that A. J. McClellan was to give him the money for it on that day. Subsequently a judgment was rendered against Young, as garnishee, for part of the debt owing by the same note, in a proceeding before a justice of the peace, in favor of McAfee.to use of Porter,-against Henry McClellan. The bill of exceptions contains the copy of an entry from the justice’s docket, in the proceeding of McAfee to use of Porter v. Henry McClellan. This entry shows Young’s answer as garnishee, which was made on the 22d January 1848, tbe judgment against him, and some receipts, by which it appears that he had paid the amount. But the nature of the proceeding in favor of McAfee to use &c. v. Henry McClellau does not appear, nor does it appear that there was any judgment against Henry. The entry was objected to by the plaintiff, but the court admitted it as evidence. It does not appear that Andrew J. McClellan was a party to or notified of any of these proceedings. Young in his answer as garnishee stated certain facts tending to show that the money due by his note was really owing to Henry McClellan, although the note was payable to Andrew J. McClellan, the plaintiff in this action. The court below admitted Young’s answer as evidence against the plaintiff, 500 and this was excepted to. As we infer from the bill of exceptions, it was permitted to have the force of evidence of the facts therein stated. Young had knowledge of the fact that the note was payable to the plaintiff, and consequently the plaintiff should have been made a party to the proceeding. — Clay’s Digest, 63, <§>§ 39, 40. As he was not made a party, he was not bound by the proceedings, and of course Young’s answer was no evidence of any fact therein stated against him. — Lampkin v. Phillips, 9 Por. 98; Crayton v. Clark, 11 Ala. Rep. 787; Moore v. Jones, 13 ib. 296. For this error the judgment is reversed and the cause remanded. •