72 Ala. 32 | Ala. | 1882
The purpose of the present bill, on,
The purpose of each of the bills under consideration — -which were, on the hearing, consolidated into one cause by the chancellor — is to force Henderson, as the assignee of Montgomery, to exhaust his remedy against the mortgaged property, and the assets of Dunklin, Duffee & Co., before proceeding against the insurance money in the garnishee’s bands. This is upon the principle, that where one creditor has a lien upon two funds or estates, and another creditor has a lien upon one of them only, the latter is entitled, in equity, to throw the former on the fund not common to both.—1 Story’s Eq. Jur. § 663; Gordon v. Bell, 50 Ala. 220; Nelson v. Dunn, 15 Ala. 501.
Conceding that a garnishment or attachment lien, acquired by summoning a garnishee to answer at law, would entitle the plaintiff so acquiring it to such a remedy in a court of equity,— a point unnecessary to be decided — it becomes material to inquire whether, under the facts of this case, the complainants have any such lien on the fund here in controversy. If not,
It has often been held, and may be considered as settled by our decisions, that attachment and garnishment proceedings-sued out in courts of law, which are purely of statutory origin, can operate only on the legal rights of the defendant in attachment — at least, in cases where no fraud intervenes — or, in other words, upon such rights as the defendant could enforce, in his own name, by action at law. If money in the hands of a garnishee is sought to be reached, it must be of a character which the defendant in attachment could recover of the garnishee by action of debt, or indebitatus assumpsit.—Henry v. Murphy & Co., 54 Ala. 246; 1 Brick. Dig. 175, §§313-14; Jones v. Crews, 64 Ala. 368; Toomer v. Randolph, 60 Ala. 356.
It is plain from the facts disclosed in the garnishee’s answer, and the other pleadings in the Circuit Court, upon the propounding of Henderson’s claim, which are also matters of proof in this cause, that the legal title of the money in Steiuer’s hands, admitted by him to be a balance of over twenty-two hundred dollars, had passed out of him before the service of the ga/rnishment writ upon him. It was transferred to Montgomery,, through the assignment made to him by Duifee in January, 1878, — considerably more than a year before the garnishment writ was issued. This fact is fatal to the garnishment proceeding ; for no balance was in Steiner’s hands, as the debtor of' Duffee, upon which the lien could operate. Steiner owed Duffee nothing, but he owed Montgomery, as the assignee of Duffee, and Montgomery was not summoned as garnishee inthe cause. The latter could have sued for the whole of the residue of the life policy fund, and if it was more than adequate to satisfy his claim, he, and not Steiner,-would have been debtor to Duffee for the surplus, if any.
The remedy afforded by the statute is, therefore, clearly inadequate to reach this surplus by garnishment against Steiner, unless by successful contest of the garnishee’s answer in the Circuit Court pursuant to the provisions of the Code authorizing such a controversy. — Code, §§ 3302-3. If. Duffee had any interest in it, only his legal, and not his equitable rights, as we have shown, could be ren died by garnishment. Nor in such cases is it permissible to resort to a court of equity, to supplement the defects of the statute.—Phillips v. Ash's Heirs, 63 Ala. 414; Janney v. Buell and Wife, 55 Ala. 408; McClellan v. Lipscomb, 56 Ala. 255. In this view of the case, the complainants had no lien on the fund in controversy, and the chancellor erred in granting-the relief prayed; and his decree is hereby reversed, and the cause remanded.