Georgia & Alabama Railway v. Stollenwerck, 122 Ala. 539

Georgia & Alabama Railway v. Stollenwerck

122 Ala. 539 | Ala. | 1898

TYSON, J.

— 1. The proof shows that the appellant company, the garnishee below, was incorporated in the *543State of Georgia on the 15th August, 1895, and was subsequently, in the same month, incorporated in-the State of Alabama. It had, therefore, legal existence or residence in each of these States for the purposes of operating its line and transacting its corporate business. For such purposes, the corporation ivas a legal unit, and when sued in either State, it could not plead its non-residence in the other. — Central R. R. & B. Co. v. Carr, 76 Ala. 388; M. & C. R. R. Co. v. Alabama, 107 U. S. 581; 2 Mor. on Corp., § 991.

2. The appellant company having been chartered by, and operating its line and transacting its business within this State1, was subject to the process of garnishment in this suit, although the debt due the defendant may have been created in another State, and he may have been a non-resident of this State, at the date of the service of the garnishment writ. The situs of a debt, in' the absence of stipulation to the contrarv, is the domicil of the creditor. — E. T., V. & G. R. R. Co. v. Kennedy, 83 Ala. 462; A. G. S. R. R. Co. v. Chumley, 92 Ala. 317; L. & N. R. R. Co. v. Dooley, 78 Ala. 524.

3. The writ of garnishment was executed on the garnishee, on the 30th of March, 1897. It was sued out in aid of the collection of a judgment theretofore rendered in favor of the appellee, against the defendant, E. A. Smith, in the city court of Birmingham, on the 7th day of September, 1896, for live hundred and fifty-five 90-100 dollars, debt and damages, and seven 30-100 dollars costs thérein. At that time, by section 2971 of the Code of 1886, it was provided, that “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.” It is to be observed, that in such case, no notice Avas required by statute to be given to the defendant in the judgment or decree, and the garnishment suit proceeded Avithout notice. That section as carried into the Code of 1896, as section 2176 therein, was so amended as to require notice to defendant in the judgment of at least five days before judgment against the garnishee. In cases of attachments it was provided, that they might be levied on real estate or *544on personal property of the defendant in attachment, or executed by summoning any person indebted to the defendant to answer as garnishee. — Code, 1886, § 2945, (Code, 1896, § 540). And notice was then, as is now, required to be given by personal service, if the defendant was resident, or by publication if non-resident. — Code, 1886, § § 2936, 2937, (Code, 1896, § § 531, 532). It may be added, as to garnishments in aid of a pending suit, in which judgment was sought against the debtor, that prior to December 9, 1886, no notice was required by statute to the defendant of the issuance of the garnishment process. On that date, by act of the General Assembly, amending section 3219 of the Code of 1876, it was provided that notice of the garnishment should issue to the defendant, which notice Avas required to be served at least ten days before judgment against garnishee. See Code, 1886, p. 652, n.

It is familiar, that the object of the garnishment is to enable a creditor to appropriate to the satisfaction of the debt due him, the property of the debtor in the hands of the garnishee, or a debt owing by the garnishee to the debtor. It operates as a levy upon the property or debt in his hands, as a seizure by the officer does upon property in the possession of defendant. The service of the process upon the garnishee arrests the debt or property in his hands belonging to defendant, and gives the court jurisdiction to condemn it to the payment of plaintiff’s demand. The garnishee is in the attitude of a mere stake-holder, supposed to be indifferent between the plaintiff and defendant; and the judgment condemning the debt OAving by him to defendant is conclusive as between him and defendant, to the extent of the judgment, unless the defendant prosecutes an appeal from such judgment, which he may do in his OAvn name. — 3 Brick. Dig. 524, § § 1, 7; Code, 1896, § 2185 (2993) ; Merrill & Bridges v. Vaughan, 118 Ala. 438; Montogmery Gas L. Co. v. Merrick, 61 Ala. 534; 8 Am. & Eng. Encyc. of Law, 1118.

It is provided by statute that when money, choses in action, or personal property are garnished, the defendant may claim the same as exempt in the manner pre*545scribed. — Code, 1896, § § 2041 (2515), 2047 (2521), 2059 (2533). It would seem, therefore, that in any garnishment proceeding, the real debtor, the defendant in the main suit, should Lave notice thereof, in order to avail himself of the right to interpose his claim of exemption. But, this right is bestowed on residents of this State, and not upon non-residents. The latter class cah set up no claim of exemptions under the constitution arid laws of this State, which have reference to and are for the bene^ fit of residents only. The defendant in this proceeding, as shown, was at the time of the service of the garnishment process, a resident of the State of Indiana. We know of no other right save that of claiming his exemption, of which he could be deprived from lack of notice of the garnishment. The judgment, so far as appears, was duly and legally rendered against- him by a court of competent jurisdiction, and it stands unreversed and unsatisfied. If the debt he owes plaintiff is satisfied in whole or in part by the garnishment process, the money so appropriated by the order of the court, is an appropriation in his own interest, and is done by due process of law.

The foregoing covers all the points insisted on by counsel for appellant in their brief and argument. Other assignments of error will be treated as waived.

Affirmed.