Flournoy & Epping v. Owens

.BRICKELL, C. J. — We think it very clear, whatever may have been the reasons inducing it, that the judgment rendered by the Circuit Court is free from error. The undisputed facts are, that the promissory notes made by the garnishees, the amount of which it was sought to condemn to the satisfaction of the plaintiffs’ judgment, were given for money loaned. At the time of the loan, the defendant in the judgment stated, that the money was the property of his wife; and one of the notes was made payable directly to her, and the other to the husband as her agent. On this state of facts, prima facie, the notes were the property of the wife, upon which in her own name she could have maintained an action at law. The presumption of ownership in the wife it was proposed to repel, by evidence that at least a part of the moneys loaned, if not the whole, was her earnings, which were not her separate property, and which were liable to the payment of the debts of her husband. The insuperable difficulty is, that the wife is not a party to the record, and can not be made a party; and in her absence, a judgment can not be rendered, which will affect and conclude her rights. And if the judgment would not be conclusive upon her, the garnishee would be placed in the peril of a double recovery, if subsequently she should sue upon the notes. — Simpson v. Tippin, 5 Stew. & Port. 208. [449] The statute (Code of 1875, § 3302) which authorizes the’calling in of a person claiming a debt it is sought to reach by garnishment, to contest with the creditor the right to such debt, is not applicable to a case of this character, i'n which a creditor of the husband seeks to subject debts prima facie the separate statutory estate of the wife. — Saunders v. Garrett, 33 Ala. 454. If it was, there has been no notice issued to the wife, and no issue formed between her and the garnishing creditor, the determination of which could bind her; and according to the case last cited, if such notice had issued, it would have been a nullity, which she could properly disregard. The remedy by garnishment has not been by the statute extended to a case of this character, as it. has not been to other cases, in which it is the peculiar province of a court of equity to interpose. Whether the rulings of the Circuit Court can be maintained, as abstract propositions of law, is unimportant. The judgment, rendered reached the proper result, and it must be affirmed.