18 N.C. 217 | N.C. | 1835
The act constituting the Supreme Court, requires that that Court shall look into the whole record and render such *219 judgment as the Superior Court ought to have rendered. An examination of the whole record will show the facts above stated. If the property had been tangible, and liable to the levy of an execution, there might have been some objection to a fi. fas. being issued instead of a ven. ex. but here, after the garnishee rendering his statement, and the money due being condemned to be applied to the claim of Myers, whose attachment was first issued, although the same proceedings were had in the other attachments, yet there does not appear to be any laches or waiver of the advantage which Myers derived from his superior diligence. In this case it was a debt, which was subjected in the hands of the garnishee; in such case, the garnishee is summoned and the judgment is against him absolutely for the debt attached. The question then is, did Myers gain a prior right of satisfaction by his superior diligence in having first issued his attachment? (There are authorities in the American Digest on this question, under the proper head, particularly a case from Bay's Rep.) The general opinion here sanctioned by the practice of our most eminent lawyers, has been, that the attachment first issued, was entitled to the priority of satisfaction. Taking this to be so, how has this advantage been lost? It was not the duty of the attaching creditor to take care of the interests of the garnishee. He, the garnishee, might no doubt have pleaded to the subsequent garnishments, that he had already been garnisheed or warned by the creditor Myers, and thus protected himself from any loss beyond the fund in his hand. — It is possible, that an inspection of the records on the suits wherein the respective judgments were rendered and executions issued in behalf of the creditors, against the garnishee, might enable us to see more distinctly the facts out of which this controversy has arisen. But these are not referred to as making any part of the present case, and we have no right to invoke them as evidence. Confining our attention to the case before us, we are obliged to understand that a judgment was rendered in *220 favor of Myers against Potts, for a sum of money, to answer such recovery as he might effect against Van Buskirk; and that at the same term, a judgment was also rendered in favour of Freeman and Houston, against Potts for the same amount, to answer such recovery as they might effect against the same defendant. If these two judgments were for one and the same debt due from Potts to the defendant in the attachments, it would seem as if gross injustice had been done to Potts. He could certainly have prevented this, by distinctly stating in his second garnishment, that he owed nothing to the defendant beyond a certain sum, which was already confessed to another plaintiff in attachment, and condemned to answer his recovery. But there are two judgments against him, and upon these, executions severally issue tested of the same term, which are delivered to the same sheriff. He is not only not bound, but is not at liberty to look beyond these executions. It is his duty to levy the amount commanded in each, if the defendant has the ability to pay. What is raised upon them is, according to a series of adjudications which cannot be disturbed, to be distributed prorata among the execution creditors, and for the balance not collected, they can proceed against the sheriff or their debtor, accordingly as circumstances may render one or the other course expedient. There may be facts not appearing before us, and which perhaps could not with propriety, be made to appear upon this application, which would, if shown to the proper tribunal, cause one or the other of these creditors to be inhibited from obtaining satisfaction of their judgment against Potts. But in the present state of things, we think no other decision could have been rightfully rendered, than that which was pronounced in the Superior Court.
PER CURIAM. Judgment affirmed. *221