Gildersleeve v. Caraway

19 Ala. 246 | Ala. | 1851

PARSONS, J.

The judgment against Gildorsleeve as garnishee, in the suit of Robertson, Beal & Co. v. Caraway, was final in the first instance, and without his answer. It was consequently erroneous, because, in such cases, the statute requires a conditional judgment in the first instance, and a scire facias to show cause. It appears by the judgment entry against Gil-dersleeve, that he had been summoned as a garnishee, and the judgment was final and absolute. Having been summoned, he was subject to the jurisdiction of the court, and we think the judgment against him, although erroneous, was not void. The judgment was rendered in the County Court of Mobile, in June, 1889. Caraway afterwards brought this suit, to the use of Rhodes, against Gildersleeve, to recover the same debt for a part of which the recovery had been had against him as Caraway’s debtor, in the garnishment proceedings. The present suit was not brought until April, 1842. On the trial, Gildersleeve, to prove payment of a portion of the demand sued- for, offered the minutes of the judgment of Robertson, Beal & Co. against Caraway, and of the judgment of the same plaintiffs against himself, as garnishee, in the same suit, which last, as already mentioned, was an absolute and final judgment, and proved that the original papers in the eases were lost or mislaid, and could not be shown, informing the court at the same time that he would also prove payment of the money specified in the judgment against himself as garnishee. The plaintiff objected to the introduction of the judgments, because the one against the defendant as garnishee was final in the first instance, and rendered without answer. The objection was sustained by the court, and the defendant excepted. The question is whether or not there was error in excluding the judgment against the garnishee, because it was irregularly taken. If the note upon which this-suit is brought and which was made by Gildersleeve, and payable to Caraway, was, in fact, transferred to Rhodes before the judgment against Gildersleeve as garnishee, and if he had notice of the transfer, he should have answered and stated those facts at his peril; and in that case it would have beeenne-cessary for him to use all legal means to prevent or to reverse an irregular judgment against him.—Colvin v. Rich, 3 Por. R. 175; Foster v. White, 9 ib. 224. This would be required of him in order to protect the rights of the real party in interest, who was not before the court.

It was determined in Johns & Cole v. Field, 5 Ala. 484, that fa garnishee cannot plead in bar of a recovery in a suit brought against him by the assignee of a note, that judgment nisi has fbeen rendered against him as the debtor of the payee, and that !hc has paid the same, there not appearing to have been any sci. fa. issued or served on him, nor any final judgment against him. For this the court reasoned thus : “It cannot be pretended that this judgment was conclusive, that any action could have been sustained upon it against the garnishee, or that any execution could have issued under it against him.” This reasoning marks the distinction between that case and this. The judgment in the present case was conclusive until reversed, and it would support an action upon it, or authorize an execution. All that can be said is, that it was erroneous or irregular. But of this Rhodes had no cause of complaint, because it does not appear that there was any transfer of the note to him until a long time afterwards. The only evidence of his interest in the note is, that the present suit was brought to his use. It was not brought until April, 1842, but the judgment against Gildersleeve as garnishee, was in June, 1839. Therefore, as Rhodes was not injured by the irregular judgment, he cannot complain, and as it was relevant evidence, there was error in rejecting it.

2. The next exception cannot be sustained. The point excep- . ted to was this, that Gildersleeve was surety of Caraway in two notes that were given by them to the Branch Bank at Mobile, before the assignment of the note sued on in this action, Caraway afterwards, to wit, in 1838, and thenceforth, being insolvent ; that Gildersleeve was sued on, and paid these notes pending the suit; that he claimed to hold the debt sued on in this action, as indemnity for that liability, until otherwise indemnified. This was excluded by the court, to which the defendant excepted. It is consistent with the bill of exceptions to suppose that the two notes were paid, not only after this suit was brought, but after.the transfer of the note now sued on and notice. Hence, such payment is not a defence in this action, whatever might be its effect in equity. — See tho Tuscumbia and Decatur Rail Road Company v. Rhodes, 8 Ala. 206; Cox v. Cooper, 3 Ala. 256.

The judgment is reversed for the error first excepted to, and, the cause remanded.

Daegan, C. J., not sitting.