52 So. 388 | Ala. | 1910
G. E. Small secured, in 1904, a judgment in a justice’s court against Tim and Susie Fritz. Levy of execution having been made on property as that of the defendants in execution, Ballew interposed a claim thereto. This claim suit was decided in favor of the plaintiff in execution. Ballew’s effort to review that judgment, both by appeal and certiorari,, respectively, failed in the circuit court of Marengo. Ballew’s claim bond was forfeited, and execution was thereupon issued against him and his sureties. On November 19, 1908, the sheriff collected under that execution the sum of $73.04. On that day the appellee caused to be issued and served a writ of garnishment, running to the sheriff, in aid of a judgment rendered in the circuit court of Marengo, and seasonably recorded by appellee in the year 1904, for the sum of upwards of $200, against G. E. Small. Without objection, Canter bury & Gilder, attorneys, interposed as claimants of said sum so shown by the sheriff’s answer to appellee’s writ of garnishment to be in the custody of the sheriff. The ground of their claim was stated to be an assignment, by G. E. Small to Canterbury & Gilder, on November 2, 1908, of his interest in the “judgment which he had recovered against Tim Fritz et ah, R. O. Ballew, claimant,” and that the money in' the hands of
The agreed statement of facts on which the trial— contest between appellee and appellants for the sum referred to — was had confirms the facts we have stated. But the agreed statement goes further, and upon it appellants assert a claim of a lien, under Code 1907, § 3011, for services to Small as attorneys in the proceedings wherefrom the sum on controversy was derived. The recordation of the appellee’s judgment, rendered by the circuit court against G. E. Small, did not avail to subject Small’s judgment against the Fritzes or Ballew to the statutory lien created by the recordation of such judgment in the probate office, for the reason that that lien is imposed only upon such property as was subject “to levy and sale under execution.”—Code 1907, § 4157. Small’s judicially declared rights against the Fritzes, or Ballew, were in nature “things in action” merely.—Code, § 4091; Tiffany v. Stewart, 60 Iowa, 207, 14 N. W. 241; Gardner v. M. & N. R. R. Co., 102 Ala. 635, 642, 15 South. 271, 48 Am. St. Rep. 84; Henderson v. Hall & Farley, 134 Ala. 455, 32 South. 840, 63 L. R. A. 673; 2 Words and Phrases, p. 1144 et seq. Accordingly appellee can take nothing, in this instance, as the result of the lien asserted to have been created by the recordation of the judgment in its favor against Small.
This ruling remits the appellee to its right to this money to the garnishment proceeding. The service of tiie writ was effected on November 19, 1908. The answer was filed July 19, 1909. The assignment to Canterbury & Gilder, based upon valuable consideration, was made on November 2, 1908, 17 days prior to the collection by the sheriff of the money on Small’s execution from the justice’s court, and the like period ante
There is nothing in this record to ' impeach, or so tending, the bona fides of the assignment by Small to appellants. That assignment expressly covered the source from which the sum in question came. The view
Accordingly the judgment must be reversed, and the cause is remanded.
Reversed aiid remanded.