Faulkner v. Chandler

| Ala. | Jan 15, 1847

ORMOND, J.

When this cause was here at a previous term, (5 Ala. 567" court="Ala." date_filed="1843-06-15" href="https://app.midpage.ai/document/chandler-v-faulkner-6502043?utm_source=webapp" opinion_id="6502043">5 Ala. 567,) we held, that Chandler could not go into chancery to obtain satisfaction of the judgment of Faulliner against him, upon the ground that a court of common law was fully adequate to grant him the proper relief, by directing satisfaction to be entered. The course which has been pursued is the one pointed out by this court, and the only question is, whether he has proved that the judgment has been satisfied.

The payment alledged was by the discharge of a judgment, obtained by the Montgomery bank against Chandler, as a debtor of Faulkner, upon garnishee process, sued out upon a judgment of the bank against Faulkner, and it is now contended, that the affidavit of Chandler was improperly received to establish the fact, that he had paid to the bank the judgment against him as garnishee. This is an equitable ■proceeding, and we can see no objection whatever to the admission of such proof, which would, be of no avail, if contradicted by the oath of the opposite party; and this we understand to be the customary course in such cases. In addition, the execution which issued against the garnishee, is indorsed satisfied by one professing to act for the agent of the bank. We cannot doubt that the proof was quite sufficient, at least prima fade, that the judgment was satisfied.

But it is urged that the garnishment was so defective that ho judgment could rightfully be entered upon it. The objection is, that the affidavit was insufficient to authorize the garnishment to issue, because it does not alledge that an execution had issued on the judgment, and had been returned “no property found.”

The act of February, 1818, (Clay’s Dig. 259, § 1,) gave this right to the plaintiff, where an execution had been returned “no property found,” on affidavit being made to the court, and a suggestion that another had effects of the defendant in his hands, a garnishment issued to such person returnable forthwith.

By the act of November of the same year, (Ib. § 2,) the right to sue out garnishee process was given immediately on the rendition of a judgment, upon making the oath required by the statute. By the act of 1823, (Ib. 3,) upon the

same oath being made before the clerk of the court, he was required to issue process of garnishment returnable to the next term of the court. This act evidently did not contemplate that the affidavit would be made during term time only, as there was no necessity in that view for the passage of the law; and as the act of 1823 did not require as a pre-requi-site, that an execution should be returned “ no property found,” it appears to cover this case.

But the act of 1837, (Clay’s Dig. 260, § 7,) is still more explicit. That act gave this remedy to the plaintiff in whose favor a judgment had been rendered, by making the necessary affidavit, either in or out of term time. In the former case, it directs the process to be returned forthwith; in the latter to the next term of the court; and as this statute gives the remedy whenever a judgment has been rendered, and does not require that an execution should have issued, or have been returned, it is conclusive upon the question. By the express terms of the act, it is made applicable to judgments rendered previous to its passage, and it would be difficult to assign a reason, why it should apply to previous, and not to subsequent judgments. Nor is such a law liable to abuse, as every one would prefer making his money by execution if practicable, by an execution on his judgment, instead of resorting to the troublesome and dilatory process of garnishment.

The objection that the judgment against the garnishee was not so great as that in favor of the plaintiff in error, is predicated upon the supposition, that the costs entered in the garnishment suit were too large. Costs were taxed in the garnishment suit against the garnishee at f>9; it is now insisted they should have been but $2. If it had been intended to raise that question in this court, the question should have been made in the court below, either by a motion to re-tax the costs, or in some other mode. But it does not appear from the bill of exceptions that this objection was raised in the court below. It is certain that a judgment was rendered against the garnishee for $9 costs, and that he has paid it, and the propriety of this judgment, cannot in the present condition of the record, be questioned.

The judgment of the bank against Chandler as garnishee, was equal in amount to the judgment of Faulkner against Chandler, with the exception- of the costs of the former, against the latter, which it appears was $59 37; and it is now insisted, the judgment should not have been ordered to be satisfied, as to these costs.

It does not appear that this question was raised below. -The whole controversy there was as to the admissibility of the record evidence, and of the affidavit of payment, and the plaintiff in general terms in his affidavit declares that the judgment was satisfied. In addition we find in the record, an execution which issued on the judgment of Faulkner against Chandler, upon which aré returns showing that the costs have been paid.

The right of the court to perfect its judgment, at another term of the court, by a judgment nunc pro tunc, is unquestionable, and doubtless the testimony afforded by the. record itself, was quite sufficient to demonstrate the mistake which had been committed by the clerk in the entry of the judgment.

Let the judgment be affirmed.