24 Mo. 44 | Mo. | 1856
delivered the opinion-of the court.
In Gates v. Kirby, (13 Mo. 175,) the maker of a promissory note., being sued for the money by one -to whom it had been assigned, pleaded that he had been previously garnisheed as the debtor of the -original payee, and, condemned to pay tbs •debt to the attaching creditor, although he had relied in Ms answer upon the fact of the assignment as a defence to the attachment. This defence was overruled in the original -court, ■and the -assignee recovered his debt against the maker. The judgment was affirmed here upon appeal, this court saying, ** the assignment -constituted a valid defence te the garnishment. That this defence proved unavailing, cam not affect the rights of the assignee. He .(the garnishee) had his remedy, and may not have lost it yet; but if he has, it has not been ¿he fault of.the present plaintiff.” And this decision, we think, is the legitimate result of acknowledged legal principles. The attachment arrested the debt in the hands of the garnishee, if it were then owing to -the attached debtor, and not otherwise. The .assignment of the note had however previously transferred the debt to the assignee, and the adjudication between the attaching creditor and the garnishee, that the debt was due to the «original payee, did not touch the rights -of the assignee, who was a stranger to the proceeding. Although, in Quarles & Thompson v. Porter, (12 Mo. 83,) the judge who delivered the -opinion of the court, speaking in reference to the effect of a judgment against the garnishee upon the rights of an assignee of the debt, remarks: “The statute prescribes no mode by which an assignee can be brought before the court and have his rights litigated; but as the t judgment is not conclusive against him unless be has notice and chooses to come in and in-
It is argued, however, that even although the assignee can not be compelled to surrender his rights against his own debtor, and to seek the recovery of his debt from the attaching creditor, yet there can be no objection to his doing so, if-he be willing to accept of that remedy. The answer to this, however, is, that the attaching creditor has also acquired rights under the sentence which would be violated by such a proceeding. The allegation of the creditor is, that the garnishee is indebted to áhe attached debtor, and such is the sentence of the court upon a contest of this matter between the attaching creditor and garnishee. As between these parties, the sentence is conclusive as to such indebtedness, not only against the garnishee, but also in favor of the attaching creditor. That fact is the very foundation of the condemnation. It is the very question litigated and contested between the parties, and pronounced upon by the •sentence. It will be readily admitted that the garnishee, after sentence and judgment, can not recover the money back from the attaching creditor upon an allegation that the debt was n,ot owing to the attached debtor as the sentence supposed ; and the reason is, that this matter has already been judicially passed upon between these parties, and therefore, as to them, is res judicata — a truth that neither can contest as long as the
The court, as before remarked, decided, in Gates v. Kirby, that a judgment against a garnishee did not protect him against a subsequent recovery on the part of the assignee of the note, and we but follow that decision to its legitimate results when we declare, as we now do, that in such case the assignee can not sue the attaching creditor, but is confined to his original remedy against his own debtor. Applying this doctrine to the case now before us, and limiting it to the facts of the case, the result is, the judgment must be affirmed. The garnishee had notice of ■the assignment of the debt to the plaintiff before he answered ; he omitted to set up this matter in his defence, and has paid ever the money to the attaching creditor according to the sentence. Under these circumstances, without at present going further, we 'are of opinion that the plaintiff can -not recover against this defendant, although the former had notice of the pending of the garnishment against his debtor, and did not in-terplead, and although, too, the present defendant was informed, during the same time, of the alleged assignment to the plaintiff.
-the judgment is affirmed.