First National Bank v. Dunn, 102 Ala. 204

102 Ala. 204 | Ala. | 1893

COLEMAN, J.

The appellant, having recovered a judgment against J. G. Thompson and F. C. Dunn in the circuit court of Etowah county, sued out process of garnishment on the judgment before the clerk of the city court of Gadsden, returnable to the city court. At the hearing the city court dismissed the garnishment suit. The question presented is, whether the clerk of the city court of Gadsden was authorized to issue the garnishment returnable to the city court.

Garnishment proceedings depend wholly upon authority conferred by statute, and must be commenced and prosecuted as therein provided. Section 2971 of the Code is as follows : ‘ ‘ Process of garnishment may issue on a judgment, or decree on which execution can issue without bond or security, and may be sued out by the assignee of such judgment or decree.” Clearly this section only provides for the issuance of garnishment process upon a judgment, but is entirely silent as to who shall issue the summons in garnishment, and recourse must be had to the law as it existed prior to the adoption of this statute, and to other existing statutes regulating suits in garnishment. Section 2971 of the Code, supra, was substituted for section 3218 of the Code of 1876. Under section 3218 of the Code of 1876 the judgment creditor was required to make the necessary affidavit before the clerk of the court in which his judgment was recovered, and the clerk was the only officer author-. ized to issue the process. By act of 1882-83, (Sess. Acts, 1?. 6), section 3218 of the Code of 1876 was amended so as to authorize the making of the affidavit “before any officer authorized to administer oaths,” but the amendment did not authorize any officer to issue process, other than the clerk of the court in which the judgment was rendered. Section 3219 of the Code of 1876 was not brought forward into the Code of 1886, but this section (3219 of the Code of 1876) was amended by act of the legislature of December 9, 1886, (Actsof 1886-87,p. 141, note in Code of 1886, p. 652), and as amended is in force. The amendment has no influence upon the question under consideration. Under this section (3219) and as amended it is provided that “A creditor * * may obtain garnishment against any person, * * when a summons and complaint have issued, by making affidavit before the justice of the peace or clerk of the court to which the summons is returnable, or any person authorized to administer oaths, * * * thereupon the justice of the peace or clerk of the court must issue process of garnishment,” &c.

The act of the legislature of December.9, 1886, supra, and section 3219, provide for the issue of garnishments where a summons or summons and complaint have issued, and evidently refer to a garnishment in aid of a pending suit and before judgment has been rendered, and not to a garnishment upon a judgment. An examination of this statute, and others authorizing garnishment in aid of a pending suit will show that no officer, other than an officer of the court in which the suit is brought, is authorized to issue the process of garnishment.

Sections 3218 and 3219 of the Code of 1876 together comprised section 2892 of the Code of 1867, and a reading of this section very clearly shows, that garnishment process upon ajudgment, or garnishment process, “when a summons or summons and complaint have issued,” could be issued only by the clerk of the court in which the judgment was rendered, or the suit against the original debtor was brought; and this is also the law, where an attachment is executed by summoning a garnishee, unless specially otherwise provided. If the plaintiff had brought suit in the city court upon his judgment recovered in the circuit court, the garnishment would have been regular, but the attempt in the case at bar is to maintain a garnishment suit in the city court not in aid of a pending suit in that court, but upon a judgment rendered and in force in another court. It is true that a proceeding by garnishment is essentially a new suit in which the creditor is plaintiff and the garnishee is defendant, and in which the original debtor has no right to intervene except to contest the answer of the garnishee, if he sees proper; it is also essentially an auxiliary proceeding, and of consequential character, — a remedy given by statute to the plaintiff against a third person, — but the statute does not authorize the enforcement of the remedy in a court which has no jurisdiction over the debt itself. A suit upon the judgment in a court different from that in which it was rendered, gives the court jurisdiction of the debt, and authorizes process of garnishment in that court. — Blair v. Rhodes, 5 Ala. 648; Jones v. Kolisenski, 11 Ala. 608; Jackson v. Shipman, 28 Ala. 488; Skipper v. Foster, 29 Ala. 330; Cross v. Spilman, 93 Ala. 170; Gatchell v. Foster, 94 Ala. 622.

There is no question of estoppel in this case. The city court did not have jurisdiction of the subject matter.— Little v. Fitts, 33 Ala. 343.

Affirmed.