Clark v. Few, 62 Ala. 243

Clark v. Few

62 Ala. 243 | Ala. | 1878

BRICKELL, C. J.

When a garnishee, by his answer or at any time before a final judgment against him, alleges that he has been notified that a third person claims the title to, or an interest in, the debt he may have admitted to be owing from him, or the property he may have admitted to be in his possession, the court is bound to suspend proceedings against him, and cause notice to be issued to such claimant to appear *246at the next term, and contest with the garnisheeing creditor the right to the debt or property. On his appearance he must be required to propound his claim in writing and under oath, and the creditor must take issue of law, or of fact, thereon. The validity of the claim interposed, must be averred by the claimant and the burden of establishing it rests upon him. — Scott v. Stallsworth, 12 Ala. 25; Camp v. Hutter, 11 Ala. 151; Brooks v. Hildreth, 22 Ala. 469. It may be the demand is not the subject of garnishment, or that third persons, who are strangers to the proceedings, have rights or equities which would prevail over the garnishment. Or, it may be the garnishment is irregular, and if these irregularities were complained of, by the party affected by them, the garnishment could not be sustained. These are matters not involved in the contest between the claimant and the garnisheeing creditor. The garnishment not being void, the claimant can not take advantage of the irregularity, or support his intervention and claim by interposing the rights and equities of strangers, they may be willing to waive; or, whether willing to waive or not, they do not interpose. It is the strength of his own claim, and not the weakness of the creditor’s, when compared with some other, which concerns him. What are the rights of the copartner of the judgment debtor Kirksey, or of the creditors of the partnership, to the debt in controversy, is not to be considered. The inquiry is limited to the validity of the assignment, under .which the appellants, who were claimants in the court below, deduce title to the debt, and whether that assignment embraces the debt.

The assignment is general, embracing all the individual property of the assignor (the judgment debtor,) not by law exempt from liability for payment of the debts, for the security and payment of his individual debts. The terms of the assignment are very broad, and intended to cover “ all the property, real, personal, and mixed,” not exempt, of the assignor. Schedules of the property, so far as remembered, are annexed, and from- part of the assignment, but it is expressly declared : if by inadvertence, or mistake, or otherwise, any of said individual property of the said Foster M. Kirksey, shall be omitted from said schedule, said property or effects so omitted is nevertheless hereby conveyed and assigned. The bona jides of the assignment is not controverted. The generality of the description of the property intended to be conveyed by the assignment for the benefit of creditors, does not affect its validity, when by the aid of parol evidence, a definite application of the terms may be made. — Brashear v. West, 7 Pet. 608; Robinson v. Rapelje, 2 Stew. 86; Pope v. *247Brandon, Ib. 401; Tarver v. Rolfe, 7 Ala. 873; Brown v. Lyon, 17 Ala. 638. Though, the schedule annexed to the assignment does not embrace the demand sought to be reached by the garnishment — and though it embraces certain choses in action and credits of the assignor, if the demand is the individual property of the assignor, it passes to the claimants. The assignment is not limited and restrained to the property enumerated in the schedules. It is by its terms, and in all its purposes and objects, a general assignment, embracing not only the property enumerated in the schedules, but any and all the individual property of the assignor, not enumerated, which from any cause may have been omitted from the schedules. — Burrill on Assignment, §§ 134-139.

The point of contention is, whether it was permissible for the garnisheeing creditor to show by parol, that though the judgment stands in the name of Kirksey, as plaintiff, he was but a trustee, and that it was in fact a partnership demand, not passing by, or intended to pass by, the assignment. The assignment operates on the individual property of the assignor only — that which could be subjected to the payment of his individual debts ; not that which he may hold as trustee, nor that which can not, by legal process, be subjected to the payment of such debts — that which is his separate property, as distinguished from that which is partnership property. The conclusiveness of judgments is indisputable. It is certainly true, as between Kirksey and the defendants in the judgment, the judgment conclusively establishes that its amount was legally due to him and not to another. The principle is not infringed by the admission of evidence showing that the claims on which the judgment was founded were due to Kirksey, not individually, but as a trustee for the'partnership creditors. Such evidence is not contradictory, but explanatory of the general words of the record, which do not declare whether the claims or the judgment are the individual property of the plaintiff, or held by him in trust. Beside, the principle itself applies only when the controversy is with parties or privies to the record, and does not affect third persons, strangers to the record. The evidence showing Kirksey had and claimed the judgment, not as his individual property, but as a trustee only for the partnership creditors, it was not embraced by the assignment to the appellants. As they had no claim to it, to them it is not material, that if the partnership creditors had intervened, it could not have been subjected by the garnishment. It is the strength of their own title on which they must rely. The rulings of the Circuit Court are not erroneous, and its judgment is affirmed.