406 So. 2d 964 | Ala. Civ. App. | 1981
This case involves an appeal by Mr. Cameron from the denial by the circuit court of his motion to quash garnishment proceedings which had been instituted against him by Mr Gunter
The facts were stipulated in the circuit court, and pertinent parts thereof, as established for the record on appeal, are as follows:
Mr. Cameron and Mr. Gunter were jointly sued for an account stated by the Mullin Company, Inc. (Mullin) in 1972. Neither defendant answered Mullin's complaint, and, in 1974, a judgment by default was rendered against Cameron and Gunter for $326.89 Mulling promptly recorded a certificate of judgment
In 1976, Gunter paid to Mullin the full amount of that judgment plus interest and court costs, and Mullin assigned the judgment to Gunter, who, shortly thereafter, recorded the assignment in the probate office
In 1980, Gunter, as "assignee of the Mullin Company," caused a writ of garnishment to issue against Cameron to his employer, which garnishment was founded upon the 1972 judgment. Cameron filed a motion in the district court to quash the garnishment proceedings, and, upon that court's refusal to quash the writ, an appeal was duly taken to the circuit court. When the circuit court rendered a similar judgment, the present appeal ensued We reverse and remand
Neither a legal nor factual foundation, basis or reason for the liability of either of the parties for the debt owed to Mullin for an account stated appears in the stipulated facts The legal relationship of the defendants to each other is not apparent. Hence, those code sections have no application which grant to a surety who pays a judgment a subrogation right to control and enforce that judgment against a cojudgment debtor Some such inapplicable provisions are found in §§
Since no applicable Alabama statute grants such subrogation rights, we have extensively searched the case law upon the subject. An irreconcilable split of authority exists among the various jurisdictions upon the question as to whether a cojudgment debtor who pays the judgment is subrogated thereto as against the other cojudgment debtors so as to utilize the judgment to enforce contribution. 73 Am.Jur.2d, Subrogation § 63, p. 637; Anno., "Right of one cojudgment debtor who pays judgment to be subrogated thereto as against other cojudgment debtors," 157 A.L.R. 495. In that annotation, only one Alabama case is cited, Hogan v. Reynolds,
In the Hogan case, supra, it was stated that, "if a judgment [against two cojudgment debtors] is paid by one who is aprincipal in that debt, and, as such, is bound to pay, he cannot, by obtaining an assignment of the judgment, keep it alive in order to coerce payment from his co-principal. . . ."See also 49 C.J.S. Judgments § 555.-b, p. 1026. In a case with similar facts, it was decided that such payment discharges the judgment and leaves nothing due which the judgment plaintiff could assign to a cojudgment debtor defendant. Bartlett Waring v. McRae,
While the above cited cases are ancient, we have not pinpointed any Alabama cases to the contrary except those later cases applying the suretyship statutes, supra. Since there could not have been a valid assignment of the Mullin judgment to Gunter, §
Therefore, the writ of garnishment arising out of the Mullin judgment could not be utilized in an attempt by Gunter to obtain contribution from Cameron, a cojudgment debtor, and the motion to quash the garnishment proceedings should have been granted. According to the facts before us, Gunter's possible remedy is limited under our present law to a separate civil action against Cameron for contribution. Abercrombie v. Conner,supra.
The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of §
REVERSED AND REMANDED
All the Judges concur
