Harris, Parker & Co. v. Hutcheson

65 Miss. 9 | Miss. | 1887

Campbell, J.,

delivered the opinion of the court.

The appellants did not have such a “claim” against Hutcheson as came within § 2028 of the Code. They had a proceeding in court by which they were trying to get a judgment declaring him to have been debtor to Halpin & Co., and appropriating that indebtedness to their judgment against Halpin & Co.; but they could not probate and register any claim against Hutcheson’s estate, because until they get judgment in the issue they will not be creditors of the estate. The service of the garnishment on Hutcheson gave an inchoate right to the appellants to be consummated by judgment against him to apply to their judgment against Halpin & Co., what should be found to be the indebtedness of Hutcheson to them when the garnishment was made. Until judgment against the garnishee he would be debtor to Halpin & Co., and not to the attaching creditor. Therefore, they were not creditors, and had no claim to prove and register. Halpin & Co. had a claim which they could have proved and registered, and they are certainly barred of all claim by § 2028 of the Code, but the right of the appellants dates from the time of service of the garnishment, and is not t'o be prejudiced by the subsequent death of the garnishee, and the failure of Halpin & Co. to have the claim registered.

There is a distinction between “ claims ” and liabilities. “All claims ” must be registered, but not all liabilities. The claims required to be registered are those for the proof and registration of which provision is made by § 2027 of the Code; those which might be paid by the personal representative when proved and registered. If the decedent was liable in damages for a trespass or the like or to account as a partner, there could not be any registration of a claim against his estate. This shows the distinction between liabilities and claims, which latter are required to be registered, a distinction pointed out by Sharkey, C. J., in Gordon v. Gibbs, 3 S. & M. 473. To bar the appellants because the claim was not registered, would be to inflict loss on them for not doing what they could not do, and to make them suffer for the negligence of the defendant in the attachment from whom they were trying to coerce payment by the process of garnishment.

Reversed and remanded.