The plaintiff took out an attachment against one James Keith, an absconding debtor, returnable before a single magistrate. This attachment is dated 10 November, 1836. On 12 November a notice is issued
by the plaintiff, Thomas S. Deaver, to John A. Sorrell, summoning him as a garnishee in the case. And on 21 November another notice for the same purpose is issued by John G. Blackwell, a constable, to the same John A. Sorrell, to appear on 26 November before one Hunt, a justice of the peace. Those notices are indorsed by the constable as follows: "Returned a true copy of the within by me, J. G. Blackwell." The magistrate, Mr. Hunt, dismissed the proceedings on the day of trial, 26 November, and the plaintiff appealed to the county court. And at the February Sessions, 1837, of the court, being the return term, an order was made directing a scire facias to be issued to Joseph M. Rice, the administrator of Sorrell, he having died in the meantime, "to make him a party to the suit as defendant." At February Term, 1839, the court ordered publication to be made against Keith, (375) as a nonresident, for six weeks, and publication was made, agreeably to the order. At February Term, 1840, the suit was, by order of the county court, dismissed, and an appeal taken by the plaintiff to the Superior Court. In this court, at September Term, 1842, the cause was submitted to a jury, but without any pleas, and against both, when the jury returned a verdict against Keith. The court gave judgment in favor of the plaintiff against James Keith for the amount of the claim against him, and judgment in favor of Rice, as the administrator of Sorrell, upon the ground that Sorrell owed nothing to Keith. At the same term of the Superior Court an order was made that J. M. Rice shall be summoned to show whether he has in his hands any property belonging to James Keith. The notice issued to him as the administrator of John A. Sorrell, and, in the character of such administrator, he rendered his garnishment, in which he stated that "as administrator of John A. Sorrell he has collected a certain note for the amount of $170 in trade, for which in cash he received $108; that this note was made by one William R. Gillespie to one Stephen Griffiths, and was assigned by him to one James Keith, who assigned it to John A. Sorrell, among whose papers, after his death, it was found," etc. Upon this statement of facts, the issues, whatever they may have been, were tried at September Term, 1844. The presiding judge gave judgment against the plaintiff, and he appealed.
We cannot perceive with what propriety his Honor could have given any other judgment. In fact and in truth, the cause was out of court, both as it respected Keith, the defendant in the action, and Sorrell, the garnishee. The judgment against Keith, obtained in the
Superior Court at September Term, 1842, was an entire nullity. He was not in court, either by his person or his property. The record shows that he was not an inhabitant of this State, and no property of his had been attached to answer as a foundation for any proceedings against him. The judgment against him, then, was (376) not merely voidable, but was absolutely void. Armstrong v. Harshaw,12 N.C. 189" court="N.C." date_filed="1827-06-15" href="https://app.midpage.ai/document/trustees-of-the-quaker-society-v-dickenson-7385392?utm_source=webapp" opinion_id="7385392">12 N.C. 189. If it were not so, the first principles of justice would be violated. An individual might be stripped of his property, without being heard or having an opportunity to be heard, or driven to expensive litigation to maintain his rights. In this case Keith was not and never had been in court. The attachment is only intended to compel an appearance. Hightower v. Murray, 2 N.C. 21" court="Sup. Ct. N.C." date_filed="1792-04-15" href="https://app.midpage.ai/document/berrys-admrs-v-pulliam-7385530?utm_source=webapp" opinion_id="7385530">2 N.C. 21. At the time this singular judgment was obtained against Keith the court gave judgment in favor of Joseph M. Rice as the administrator of John A. Sorrell, that he, Sorrell, at the time he was summoned as a garnishee, and when he made his garnishment, was not indebted to James Keith, and had not in his hands any property or effects of said Keith liable to the attachment. The cause would then have been entirely out of court, but for an order made simultaneously, that notice should issue to Joseph M. Rice to answer, as garnishee, as to his indebtedness to Keith. A notice was issued to him, and he was summoned in his character as administrator of Sorrell, to make his garnishment. He answered that among the papers of his intestate he found a note originally given or made by one Gillespie to a man of the name of Griffiths for a certain sum of money to be discharged in trade; in other words, to be discharged in specific articles, which note had been assigned to Keith and by him to Sorrell. As administrator of Sorrell, Rice was not bound to answer as a garnishee. He had already in this case had a judgment pronounced in his favor that his testator neither owed Keith anything nor had he any property or effects of Keith in his hands, and this judgment was pronounced in relation to this identical Gillespie note, and was at that time, and still is, in full force and unreversed. There is, however, another objection to the proceedings in this case, so far as Rice, the garnishee, is concerned, or as he is concerned in his representative capacity. It is not pretended that either Sorrell or Rice had anything in their hands as the property of Keith, except the Gillespie note. That note was not an assignable (377) instrument, not being for money absolutely, but for so much money to be discharged in trade. Was it the subject of attachment? We think it was not. Hugg v. Booth, 24 N.C. 282" court="N.C." date_filed="1842-06-05" href="https://app.midpage.ai/document/hugg-v--booth-3655571?utm_source=webapp" opinion_id="3655571">24 N.C. 282, contains a full statement of the doctrine on this subject. By the act of 1777 no provision is made for the case where the garnishee is indebted for specific articles. This omission is supplied by the act of 1793. This act provides:
"When a garnishee shall declare that the money or specific articles due by him will become payable or deliverable by him at a future day," etc. The act leaves us in doubt as to the nature of the obligation for the delivery of the specific articles embraced and meant by it. It is confined to the obligation or assumption of the garnishee himself to the defendant in the attachment, either to pay a particular sum of money in specific articles, or absolutely to deliver a certain quantity of specific articles, as a horse or cow, or 100 bushels of corn. In either case debt would lie at the common law if the obligation was not complied with. And in no case, where the claim of the defendant in the action against the garnishee rest in unliquidated damages, can the demand be attached. This principle is fully established by the case last cited. The instrument upon which this question arises was not given by either Sorrell or Rice to Keith, but was given by Gillespie, and came by assignment to Keith, and by him to Sorrell. It is not, therefore, such an obligation for the delivery of specific articles as comes within the attachment law. Neither Keith nor Sorrell had any title in law to it, and neither could maintain any action on it in his own name. When Rice received the money on it he received it not for the use of Keith, but as administrator upon the estate of Sorrell, for the use of his estate, or for the use of Griffiths. But the estate of Sorrell was already discharged by a judgment of that court, and in the same case, from all liability to the plaintiff on account of Keith. Qua cumque via data, therefore, the judge who (378) tried the cause was guilty of no error in setting aside the verdict of the jury and giving judgment for Rice, which put the whole cause out of court.
PER CURIAM. Affirmed.
Cited: Cameron v. Brig Marcellus, 48 N.C. 84.