Hitt v. Lacey

| Ala. | Jun 15, 1841

Lead Opinion

ORMOND, J.

We cannot perceive any reason why an attachment will not be sustained, merely because the defendant in the attachment has commeced a suit against his debtor previous to the suing out of the attachment and the summons of his debtor as garnishee. Our statute authorises an attachment to be levied on a debt due the defendant in attachment, and by a garnishment against such debtor, subjects the debt in his hands to the payment of the claim prosecuted in the attachment. It certainly is not the less a debt, because a suit has been commenced upon it, and therefore would seem to be within the very letter of the statute.

The case cited from 13 Peter’s Reports, is not like this case. There, the suit against the debtor, who was afterwards garnisheed, was commenced in a Court of the United States, previous to the commencement of the suit by attachment in one of the State Courts. This appears to have been a principal element of the decision of the court. It is stated in the judgment ofithe Court that, “the jurisdiction of the District Court of the United States, and the right of the plaintiff, to prosecute his suit in that Court, having attached, that right could not be arrested, or taken away by any proceedings in another Court-This would produce a collision in the jurisdiction of Courts, that would extremely embarrass the administration of justice.” Now, here the suit brought by the defendant in the attachment against his debtor, and the attachment against him, are both prosecuted in the same Court, no conflict of jurisdiction, therefore, can by possibility arise, and no reason can, in our opinion, exist, which would justify the Court in refusing to give effect to the statute. The precise point here raised, was determined by the Supreme Court of Pennsylvania, in McCarty v. Emlin, (2 Yeates’ Rep. 190,) in which it was held that a debt in suit might be attached in the hands of the defendants in the suit; (McKean,) C. Justice, saying that the English decisions in which the contrary doctrine was held, proceeded on the ground that the inferrior Courts, in which alone this proceeding could commence by the custom of London, could not interfere with a matter in suit in the King’s superior Courts.

InZurcher v. McGee, decided at the last term, we held that money collected on a judgment, could not be attached by process of garnishment, in the hands of the sheriifj on the ground ■ that it was in the custody of the law and did not become the property of the judgment creditor until it was paid over to him. It is obvious that decision does not affect the present question; and we are of opinion that no obstacle exists to giving effect to the plain direction of the statute.

But, as the plaitiff had a right of action when he commenced his suit, and which is admitted by the plea, puis darrein continuance, no judgment could be rendered against him for costs. The judgment of the Court below must therefore, so far as it relates to the costs, be reversed, and here rendered for the plaintiff in error, up to the time of plea pleaded.

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Dissenting Opinion

GOLDTHWAITE, J.

I dissent from so much of the opin- . ion just pronounced, as reverses the judgment, because costs were given to the defendant. I think the plaintiff was entitled to costs, only in the event of confessing the plea; hero, however, he contests the defence, and I think all the precedents are, that he.is chargeable with the costs.