W. L. Murdock Brokerage Co. v. Collins

DENSON, J. The plaintiff, B. E. Collins, commenced a suit by attachment in the circuit court of Jefferson county against, the defendant, Pacific Selling Company, on the ground of the non-residence of said company. The attachment was issued on the 15th of July, 1903, and was levied on 1,062 cases of salmon as the property of the defendant in attachment. Tlie return of the sheriff was made July 15, 1903. On the 3d day of March, 1904, the plaintiff filed his complaint, and on the following day, namely, the 4th day of March, 1904, judgment was rendered in .favor of the plaintiff, against the defendant on appearance of the parties, as shown by the minute entry, for the sum of $1,950. In tlie judgment entry 62 cases of the salmon levied on were condemned to sale; the other 1,000 cases having been claimed by a third party. On the same day that the judgment was rendered an alias writ of attachment was issued in the usual form. The alias writ was executed on the 3d day of March, 1904, by the sheriff summoning the W. L. Murdock Brokerage Company and others as garnishees of the defendant in attachment. On the first day of. April, 1904, the W. L. Murdock Brokerage Company answered that it was not indebted to the defendant, that it will not be liable to defendant for the delivery of personal property, or for the payment of money which may be discharged by the [608] delivery of personal property, or which is payable in personal property, but that it had in its possession or under its control 85 cases of canned salmon belonging to defendant. The answer Avas subsequently amended by adding that the garnishee held said salmon subject to deliA'ery to said defendant at any time from the date of the ansAver, and that said, salmon were of the Aulue of $4 per case. On the 11th day of June, 1904, the court rendered judgment against the garnishee, requiring it to deliver the 85 cases of salmon to the sheriff of Jefferson county on or before the 14th day of June, 1904, and that in default of delivery to the sheriff the garnishee should pay the plaintiff the Amlue of the salmon, to-wit, |340. It is manifest that in entering the judgment the court was endeavoring to conform to section 2192 of the code of 1896, and in doing so we think the court fell into an error. That section is applicable only when there is a liability on the part of the garnishee to the defendant for the delivery of personal property; for instance, a contract by Avhic.h the garnishee has promised to deliver to the defendant personal property in discharge of the contract, oi- Avliere the garnishee is liable to the defendant for the payment of money which the contract creating the liability stipulates may be discharged by the delivery of personal property. The garnishee’s answer shows no liability of the kind mentioned in either category. So far as the ansAver goes, the title to the salmon Avas never in the garnishee, and it- never asserted any title to the salmon. On the contrary, the ansAver expressly alleges that the 85 cases of salmon belonged to the defendant in attachment. In this state of the case, Ave think the ansAver of the garnishee falls clearly within the provisions of section 2193 of the code, and that the court in rendering judgment should have conformed to that section. In Jones v. Crews, 64 Ala. 368, § 2193 of the code was to some, extent construed. At that time (1879) § 2192 of the code did not exist, and there Avere only two classes of cases in which judgment might be rendered in favor of the plaintiff in garnishment: “First, where a debt [609] was admitted, or shown to be due from the garnishee to the judgment or attachment debtor, in which case a judgment might be rendered against the garnishee, for a fixed, ascertained sum and collected 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 second instance, except an order and direction that he deliver the chattels upon the demand of the sheriff after the rendition of judgment in favor of the plaintiff in the original suit, or so much thereof as may be necessary to satisfy the judgment. If he delivered 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 t'ollection of money can be issued against him.” If he fails to deliver the property to the sheriff on demand, the sheriff is required to make return thereof to the clerk, who must thereupon issue an execution against the garnishee in favor of the plaintiff for the amount of the, judgment and costs. Garnishment is a proceeding of purely statutory creation, and while the court is inclined to construe it favorably, as remedial and beneficial, yet, being a statutory proceeding, parties seeking to collect debts through its aid must conform substantially to the requirements of the statute. TYe think it clearly appears from an inspection of the judgment rendered against the garnishee that it fails to substantially conform to code 1896, § 2193, even if it might be considered that the court was attempting to comply with that section. As the answer of the garnishee did not authorize or. empower the court to proceed under section 2192 of the code, and the judgment is fatally defective as a judgment under section 2193 of the code, the judgment against the garnishee must be reversed and the cause remanded. Bevevsed and remanded. McClellan, C. J., and Dowdell and Simpson, JJ., concur.