Jones's Adm'r v. Crews

STONE, J. Writs of garnishment may be issued, as a means of collecting money decrees of the Chancery Court, and are “ governed by the law regulating garnishments from the Circuit Court, as far as the same may be applicable.” Code of 1876, § _§ 3854-45-6. In the Circuit Court, a judgment creditor, his agent, or attorney, may obtain process of garnishment against any person supposed to be indebted to the defendant, in any cause where execution could issue on the judgment, by making affidavit before the clerk of the court in which the judgment was rendered, that such person is supposed to be indebted to, or have effects of the defendant in his possession, or under his control, and that he believes process of garnishment against such person is necessary to obtain satisfaction of such judgment.” — Code of 1876, § 3218. Section 3219 makes provision for garnishment in aid of a pending suit, “ when a summons, or summons and complaint have issued.” Section 3293 directs when and how the garnishee shall answer. Section 3294: “ If he answer, and admit indebtedness to the defendant, judgment thereon must be rendered against him.” Section 3295; “ If he admit the possession of chattels of the defendant, judgment of condem [371] nation must be rendered, that they be delivered up on demand, after the rendition of judgment on the attachment [or other suit] in favor of the plaintiff, or so much as may be necessary to satisfy the judgment, and the sheriff must make sale thereof.” Section 3296 : “ If he fail to deliver them to the sheriff on demand, he must make return thereof to the clerk, who must thereupon issue a writ of fieri facias against him, in favor of the plaintiff, for the amount of the judgment and costs.” Section 3297 provides a mode of relief from this, sometimes, severe penalty, if the failure to deliver “ is without fault or negligence on the part of the garnishee.” It will thus be seen that there are two states of case, in which a judgment may be rendered in favor of the plaintiff in garnishment: First, when a debt is admitted, or shown to be due, from the garnishee to the judgment or attachment debtor; in which case, a judgment is rendered against the garnishee, for a fixed, ascertained sum ; which judgment is collectible by execution, as other money judgments are. In the second class — cases in which the garnishee admits his possession of chattels of the defendant — no personal judgment is rendered against the garnishee, in the first instance, except an order and direction that he deliver the chattels up, on the demand of the sheriff. If he deliver the chattels on such demand, he is discharged. It is only when he fails to deliver on demand, that any blame attaches to him, or any final process for the collection of money can be issued against him. The law has provided these two modes of collecting, by garnishment, a demand in judgment, or in suit; and it has declared no other use, to which this common-law process can be applied, and has provided no machinery for adjusting its remedial powers to any state of case, other than the two noted above. To repeat in brief: there can be only a money judgment against the garnishee, on a debt ascertained to be due from him to the defendant, or a condemnation of chattels in his hands, the property of the defendant, and an order that he deliver them to the sheriff on demand, to be sold in satisfaction of the plaintiff’s judgment, not against the garnishee, but against the defendant. Garnishment is a proceeding of purely statutory creation, unknown to the common law; and while we are inclined to construe it favorably, as highly remedial and beneficial, we have no power to originate machinery, or process, by which to adapt it to conditions, which its statutory provisions are not broad enough to cover. The court having power only to render an unconditional money judgment against the garnishee, or to condemn personal chattels in his hands, it early became a question, what description of debt or liability would [372] authorize a personal money judgment against the garnishee. It was settled, that only such debts as would maintain debt, or indebitatus assumpsit, if sued on by the defendant, could be the subject of such condemnation and personal judgment. Presnall v. Mabry, 3 Por. 105; Smith v. Chapman, 6 Por. 365; Mims v. Parker, 1 Ala. 421; Blair v. Rhodes, 5 Ala. 648; Harrell v. Whitman, 19 Ala. 135; Roby v. Labuzan, 21 Ala. 60; Cook v. Walthall, 20 Ala. 334; Self v. Kirkland, 24 Ala. 275; Lundie v. Bradford, 26 Ala. 512; Nesbitt v. Ware, 30 Ala. 68; Powell v. Sammons, 31 Ala. 552; Godden v. Pearson, 42 Ala. 370; Henry v. Murphy, 54 Ala. 246. In Mims v. Parker, supra, the promise of the garnishee was to pay his creditor in notes, which he was to purchase on the latter, but the garnishee had failed to obtain the notes. The garnishee was discharged. This court said: “ This is evidently not a money contract, and to treat it as such, and render a judgment against the garnishee, would be doing him great injustice. It would be enlarging his contract with Eedus, both as to the mode and time of payment.” We infer the garnishment was served before the debt of the garnishee was due, although the report of the case does not expressly say so. If the debt was past due, and the debtor had failed to procure the notes, possibly other principles wmuld have governed the case. — See Weaver v. Puryear, 11 Ala. 941; Bozeman v. Rose, 40 Ala. 212; Peter v. Butler, 1 Leigh, 285; Ward v. Begg, 18 Barb. 139; Strode v. Little, 45 Penn. St. 416; Baylies v. Fettyplace, 7 Mass. 325; 1 Waite’s Actions, 384. In Nesbitt v. Ware, 30 Ala. 68, the legal effect of the contract was, " that Nesbitt should pay Gray, in the installments, and at the times specified therein, six thousand dollars, in iron at five cents per pound, and castings at four cents per pound, to be delivered at the place or places where made;” with a condition superadded, giving Nesbitt the privilege of discharging it by paying the note of Gray for $1,941, payable to the State, and giving his own note for $3,000, payable in money in specified installments. This court said: “ Gray has no right, under the contract, to hold the garnishee liable for the three thousand dollars for which the latter had the privilege to give his obligation, unless that obligation has been given. . . If liable at all, his liability is for a part, or the whole, of the six thousand dollars first mentioned in the contract, to be paid in iron and castings as therein shown. Supposing him liable for a part or the whole of that six thousand dollars, the question is, could Gray have maintained debt, or indebitatus assumpsit, to enforce that liability. We think it clear that he could not.” And it was ruled, that- the [373] indebtedness disclosed could not be reached or condemned by proceedings in garnishment. In the case of Iioby v. Labuzan, garnishee, the latter had advanced money to Jones, defendant in attachment, and, to secure its repayment, had shipped a lot of cotton, turned over to him by Jones for the purpose, to a commission-house in New Orleans, to be sold, and, of the proceeds, Labuzan was to repay himself for the advances, and the residue would be going to Jones. The cotton was not sold when the garnishment was served. Daegan, 0. J., delivering the opinion of the court, said : “ But it is contended that the garnishee, though not strictly indebted at the time of the service of the writ, nevertheless had property in his possession, to-wit, the cotton, and that he is liable for the value thereof, over and above the advances made by him to Jones, the defendant in attachment, To this argument I can not assent. The process of garnishment can reach only the legal rights of defendant. What I mean by legal rights is, that it reaches such debts as can be enforced by the defendant in the attachment, by suit at common law, and, also, such property as would be liable to seizure and sale, if the sheriff could get possession of it. . . It may, however, be said, that the ■ right of Jones to the surplus, after paying the advances, is a legal, and not an equitable right. I admit it is so, after the money came into the hands of Labuzan, the garnishee. But, considering the cotton as property at the time of the garnishment, and we are bound so to consider it, it is very clear that it could not have been levied on in the possession of the garnishee, who had made advances upon it. . . In that condition, the cotton was not subject to execution at law; and I do not see how it could be liable to attachment. . . If, then, we consider the cotton as property in the possession of Labuzan, it could not be sold under legal process against the defendant, and, consequently, it can not be reached by process of garnishment. And if we consider the right of Jones as the mere right to demand the surplus of the money it might bring after the payment of the advances made by Labuzan, then the decisions we have referred to furnish the decisive answer, that, at the time of the writ, there was no debt due from the garnishee to the defendant in the attachment.” In the present ease, the garnishee was summoned, and filed his answer in October, 1878. He admitted he had executed to the defendant, Jones, his two promises in writing, one for the payment of four bales of cotton, of certain class and 'weight, October 15th, 1879, and the other for the payment of six bales, October 15th, 1880. At the October term of the [374] court, 1878, the chancellor discharged the garnishee on his answer. It will be observed that, under this contract, Crews, the garnishee, made no promise to pay money. Neither was it a promise to pay a sum of money, which might be discharged by the delivery of cotton. It was a simple promise to deliver and pay cotton. When the garnishment was sued out and served, and when the answer of the garnishee was filed, it could not be known that the liability from Crews to Jones would ever become a money debt. We can not indulge the presumption that Crews would violate his contract, and fail to deliver the cotton. The court had no power to change the obligation to deliver cotton, into a promise to pay money. That would be to add a term or terms to the contract, which the parties had not themselves agreed upon. At the time of the summons, and at the time of the answer, there was no money debt due from Crews to Jones, and it did not appear, and could not be known, that the garnishee would be indebted in future to the defendant, in any money debt, by a contract then existing. — Code of 1876, § 3269. It is clear that no money judgment could be rendered against the garnishee on his answer. Nor does the answer admit, or tend to show, the garnishee had in his possession chattels belonging to the defendant. To come within this clause of the statute, the chattels must be so held and controlled by the garnishee, as that, when so ordered by the court, he can deliver them to the sheriff on demand, that the latter may make sale thereof. Code, § 3295. The statutes allowing garnishments make no provision, and furnish no machinery for such a case as this. — Drake on Att. § 550. In Roby v. Labuzan, supra, Ch. J. Dargan said : “ It may be that our'decisions have so restricted the operation of this process, as to lose some of the benefits that creditors might have derived from it; but we deem it best to adhere to them, and let the legislature extend, the remedy.” My own opinion is, that in the absence of further legislation, the rulings of this court have been substantially correct. We think, however, the remedy might be made more .efficient, by so extending its provisions, as to bring within its scope and power contracts for the payment of things other than money. The decree of the chancellor is affirmed.