Guilford v. Reeves & Co.

McOLELLAN, J. It is quite true that, when the defendant to a cause in which the process of garnishment has been resorted to and the garnishee has answered indebtedness executes bond as provided in the act of February 12,1891, (Acts 1890-91, p. 590),,for the dissolution of the garnishment, no judgment can be rendered against the garnishee, for the plain reason that the garnishment has been dissolved. — Balkum v. Strauss, 98 Ala. 460. But it is equally true that the bond stands precisely in the stead and place of the garnishee, and that no judgment can be rendered upon it or against any of the obligors therein as such obligors unless and until the plaintiff in action and garnishment would have been entitled to judgment against the garnishee had the bond for the dissolution of the attachment not been given. If for any cause the plaintiff, notwithstanding admission of indebtedness by the garnishee, would not have been entitled to judgment against the garnishee, as for instance when it is made to appear that a third person has a superior claim to the money due or to become due in the hands of the garnishee, then he can not have judgment on the bond. In the case at bar the answer of the gariiish.ee alleges that the garnishee had been notified that C. M. Hill, a stranger to the pending suit, claimed the money which the answer admitted-to be due from the garnishee to the defendant. The answer also showed that other writs of garnishment in other actions against the defendant here had been served on the garnishee, but whether before or after, or simultaneous with, service of the writ in this case does not appear. On this answer, the bond standing in the shoes of the garnishee, the case was brought, in our opinion, directly within the provisions of sections 2984 et seq. of the Code, and no judgment on the bond could be rendered — as no judgment against the garnishee, had the bond not have been given, could have been rendered —until the proceedings required by those sections were had, and upon them the claim of Hill had been adjudged against him, or, if he were a resident, two notices of the garnishee’s suggestion of his claim had been re [304] turned not found. Meantime the law requires the court to suspend the proceedings against the garnishee, and, as we hold, where bond has been given for a dissolution of the.garnishment, against the obligors on the bond. That course was not taken in this case. To the contrary, no steps were taken to notify Hill to the end that his claim might be propounded and tried, but judgment was rendered for the plaintiff against the obligors on the bond without the proceedings provided for in the statutes being had. This was clearly erroneous. That judgment will be here reversed, and the cause will be remanded. The pendency of garnishments against the garnishee here in other suits against the defendant here, whether pi’ior or subsequent to the writ in this case, is not a matter for suggestion by the garnishee under section 2984 of the Code. — Security Loan Association v. Weems, 69 Ala. 584. But where there- are other prior garnishments, and the admitted indebtedness is not sufficient to satisfy the demands, of the two or more plaintiffs or where the several writs are contemporaneous and the indebtedness is not sufficient to satisfy all the claims in full, it would seem that, in the case first supposed, the cause should stand over until the amount of the prior demands including costs has been ascertained by judgment against the bondsmen in that or those cases, and judgment in the subsequent garnishment should then be rendered against the bond in the subsequent case for the balance only of the fund; and, in the second case — where the service of the several writs is simultaneous — judgment against the bond in any one case should be for only such part of the indebtedness as each plaintiff is entitled to under the rule for division of proceeds of property attached or levied upon simultaneously at the suit of two or more creditors of the defendant; and that no judgment against the bond could be had in any case until all the claims thus entitled to share in the fund had been ascertained by judgment against the defendant in each of them. These conclusions appear to result necessarily from the position we have declared in respect of putting the bond in the shoes of the garnishee, the provision of the statute that the bond shall be “for the payment of such judgment as may be [i. e. .might have been but for. the. dissolution on bond given] rendered against the gafnishee in such proceedings, and the cost thereon,” and the adjudications of this [305] court on this question in a case where no bond had been given. — Warren v. Matthews, Garnishee, 96 Ala. 183. Reversed and remanded.