49 Ala. 148 | Ala. | 1873
— At the October Term, 1870, of the City Court of Montgomery, Charles K. Dudley, as plaintiff, recovered judgment against Jefferson Falkner, in said City Court, for the sum of $987.50, besides the further sum of $10.50 for costs of suit. On this judgment the said Dudley sued out process of garnishment in said City Court against Jefferson Falkner and Benajáh S. Bibb, as the executors of the will of Wm. B. S. Gilmer, deceased, on the 23d day of January, 1872, which was made returnable into said City Court as required by law. The summons, or process of garnishment, was regularly . executed on said Bibb and said Falkner, on the said 23d day of January, 1872. On the return of this process into court, Bibb appeared and answered the same. In this answer he says he “ makes his answer of no indebtedness to the defendant, and that he is not such executor now, and was not at the time
At the same term of the said City Court, said Jefferson Falkner also appeared, and “ suggested to the court that Jefferson Falkner, the defendant in execution, is the same Jefferson Falkner who is garnisheed in this cause as executor of the last will and testament of said Win. B. S. Gilmer, deceased.” This suggestion being admitted by the plaintiff, said Dudley, “ the said garnishee,” said Falkner, “ thereupon moved the court to discharge him on the ground mentioned in said suggestion.” Whereupon the court below granted Falkner’s motion, and rendered a judgment discharging him, and taxed the plaintiff in the garnishment with the costs. To this Dudley, the plaintiff in the garnishment, excepted, and made his exception a part of the record by bill of exception. From this judgment Dudley appeals to this court, and assigns the discharge of Falkner, without answer, as error.
The proceeding by garnishment is statutory in this State. And the main question in this case is this: Was Falkner, as the executor of the will of Gilmer, deceased, exempted from its operation ? Garnishments may be issued in favor of any judgment creditor, against any person supposed to be indebted to the defendant, on the terms prescribed by the statute. Rev. Code, § 2892. The proceedings on a garnishment so sued out are required to be conducted as follows : “ Such person is called the garnishee, and must be cited by the officer to appear at the return term of the writ, and answer upon oath whether he was indebted to the defendant at the time of the levy of the attachment, or at the time of making his answer, and whether he will not be indebted in future to him by contract then existing; and whether he has not in his possession, or under his control, personal or real property, or things in action, belonging to the defendant; a copy of .which citation he must return executed, together with the attachment and levy.” Rev. Code, § 2944. This section of the Code is applicable to this case. Rev. Code, §§ 2892, 2894. Only the citation here is a summons, and is served and made returnable as an independent proceeding. Rev. Code, §§ 2892, 2894, swpra. And “ the garnishee must answer upon oath, according to the terms of the citation, within the first three days of the return term of the attachment ” (or summons), “ and may, if required by the plaintiff, be examined orally in the presence of the court.” Rev. Code, §§ 2894, 2968. And the statute further directs, that “ If the garnishee fail to appear and answer, a conditional judgment must be rendered against him for the amount of the plaintiff’s claim, as ascertained by his judgment, to be made absolute if he does not appear within
The description of the person to be cited as the garnishee does not exempt any one against whom a judgment may be rendered. An executor may be sued, and a judgment may be rendered against him as such. 1 Chit. Pl. 19, 20, 22. Then Jefferson Falkner, as the executor of the last will and testament of Wm. B. S. Gilmer, deceased, may be sued. It is true that, in such a suit, as a general rule, the executor does not represent a personal interest, but only the interest of the deceased, or the estate, and the judgment is not against the executor personally. But, as executor, one may acquire rights against the estate of the deceased, which may ultimate in a legal liability or claim in his favor against the estate, which is subject to be discharged by a payment or a retainer in money. The statute creating this right declares, that “ executors and administrators may be allowed such commissions on all receipts and disbursements by them, as such, as may appear to the Probate Court a fair compensation for their trouble, risk, and responsibility, not to exceed two and one half per cent, on the receipts, and the same percentage on the disbursements ; and the court may also allow actual expenses, and for special or extraordinary services, such compensation as is just.” Rev. Code, § 2161. The executor is also entitled to the same commissions on the appraised value of all personal property, moneys, and solvent notes distributed by him. Rev. Code, § 2162. The compensation to which the executor or administrator may thus become entitled may amount to a very considerable sum of money. To say that this shall be protected against seizure by garnishment is, in effect, allowing the executor or administrator to profit by his own wrong. Certainly this right to compensation is a claim which would survive to the executor’s representative, if it is not paid during his life. It is property in the nature of a thing in action, or money due upon account. And in this form of action it is no sufficient objection to say that, the defendant in the judgment cannot be cailed to answer what he owes himself in his representative capacity ; that is, what the estate he represents owes him for compensation for his services.
In the case of Grayson v. Veeche (12 La. 688) the Supreme Court of Louisiana has decided, under a statute similar to ours, that a party may attach the amount of a judgment against himself. This decision is supported by the English and American authorities. 1 Rolle’s Abridg. 554; Graighle v. Notnagel, 1 Peters C. C. R. 245. It establishes the principle that a plaintiff in garnishment may attach funds in his own hands to pay a debt due to him from the person whom he
— The application for rehearing in this case is denied, with costs. It simply proposes a review of the argument on the point on which the reversal was resisted in the first instance. I think this is already sufficiently answered, and from this answer the court is not willing to recede. There will be no serious difficulty if the answer of Falkner as executor of Gilmer, deceased, justifies it in rendering the proper judgment against him as such executor, in favor of Dudley, or discharging him as garnishee. This is all that need be done, in the manner that the statute requires.