| Miss. | Oct 15, 1873
delivered the opinion of the court:
Fisher, the executor of Evans, was discharged upon his answer, on the ground either that the estate of Evans, deceased, had been declared insolvent, or that Rush, the creditor of that estate, and defendant in attachment suit of J. W. Holman, was dead, and it so appeared of record, before the judgment was rendered against him.
Fisher in his answer admitted the indebtedness of the estate of Evans to Rush, and that the dividend to which he would be entitled would amount at least to $1,200.00.
The statute has settled what was before doubtful, by permitting an executor or administrator be be garnisheed. But it is said that, inasmuch, as an executor or administrator cannot be sued after the estate has been declared insolvent, a garnishment process, which is a suit, is also prohibited. The reason of the statute is two-fold, first, that the assets
But- a garnishment proceeding has a two-fold character, it is in the nature of a suit, and also of -final process. In its former aspect, a contest may arise between the plaintiff in the writ, and the garnishee, as to whether there is a debt due to the defendant in the attachment, or as to its discharge and payment, or as to the consideration, just as if this immediate creditor had sued to recover the debt. In the latter aspect, it is an effort to appropriate the effects or the debt which the garnishee owes the defendant in the attachment, to the satisfaction of the plaintiff’s demand.
If, as appears from the answer of the executor, as in this case, that an indebtedness is admitted, the garnishee stands indifferent between his immediate creditor and the plaintiff in the writ. Nor does it matter whether the estate be solvent or insolvent, as affecting the right to the writ, or as in any wise infringing the rule that an insolvent estate shall not be sued. Why, sue an insolvent estate when the debt against it may be proved against it before a commissioner of insolvency? and when established in that mode, the creditor has the same benefits, as if he could have recovered a judgment. But here the plaintiff alleges, that Bush is his debtor, and a non-resident; but that the estate of Evans is indebted to Kush, and that what the estate owes Kush ought to be diverted to the payment of the plaintiff. The statute expressly allows the proceeding; but because the estate has been adjudicated insolvent, it is urged that the insolvency takes the case out of the reason and intendment of the statute. We think not. In the former case, the plaintiff would take judgment, against the administration, for the amount admitted to be owing; so far as is necessary to pay his debt. In the latter case, that is of declared insolvency, he would take judgment for the dividend awarded to the garnishee as his quota as a
We think that there is no objection to a garnishment of the distributive share of the creditor of an insolvent estate, and that such proceeding does not come within the in-tendment and reason of the statute referred to as denying it. Thrasher v. Buckingham & Co., 40 Miss., 71 ; Sanders v. Douglass & Hall, 3 S. & M., 454.
But it is objected, that Kush was dead when the judgment was rendered against him, which made it void. Section 1486 of Code of 1871, is, “if defendant shall die after service of the writ of attachment, the action shall not thereby be abated, or discontinued, but shall be carried on to judgment, sale, transfer, and final determination, and all proceedings and deeds are declared to be valid in law, as if had or made in the life-time of the defendant.” This provision was incorporated into the consolidated act of June 7, 1822, compiled from prior acts of 1807, 1811, 1812 and 1814, Hut. Code, 808,. section 28, and was embraced in the revision of 1857, p. 382, art. 39. It was recognized as valid law in Sherwood v. Houston, 41 Miss. Rep., 62. The precise effect of this statute has (it would appear) never been very deliberately considered by the appellate court. It was' declared in Tuck v. Thompson, 41 Miss. Rep., to be a universal principle that a judgment -without notice is invalid. It would seem to be axiomatic that a personal judgment against a dead man would be quite as invalid- as against a living party without notice. When this provision was first introduced into the attachment law, a personal judgment was not rendered against the defendant, to be satisfied by the ordinary process of fieri facias. .The object of seizing
The 25th section of Hutchinson’s Code, 807, above cited,' makes that plain. The satisfaction was confined to the property upon which a levy had been made, “ or to the garnishee, Who shall have money or other property in his hands belonging to the debtor.” But if the defendant shall appear, put in bail, and plead to the suit, the judgment rendered shall have the same effect as if a capias ad respondendum had been served on the person of the defendant.”
It would have been competent for the legislature to have given to the seizure of the property, under the writ, the effect of constructive notice to the defendant, for all the purposes of dealing with the property, and disposing of it, towards the payment of the plaintiff’s debt. But it saw proper to adopt • other means of notice, *by publication, and now, in-addition, notice through the mail.
We think that the original purpose of the section under review, Was to authorize the court, after the attachment was served, notwithstanding the defendant’s death, to proceed to a judgment and sale, or final process against the garnishee and property attached. For these purposes, and to that extent, the process is strictly in rem. The judgment, in legal effect, operates upon the property or the money in
The remedy was very much enlarged by the statute of 1857. If personal. service is had, or the defendant appears and pleads to the action, there may be a personal judgment. Art. 20, p. 379. But such service of process or appearance and plea, shall not affect any lien created by the attachment, '* * but the proceedings, in respect to the property attached, or any garnishee summoned, shall be the same as if final judgment had been entered by default, without any appearance of the defendant.” Art. 20, supra/ Code of 1871, § 1476. The manifest purpose of this addition to former statutes, Was to give the plaintiff,-the right to conduct, as it were, two processes against the debtor at the same time, the one in r'em looking to a subjection of the attached property, or the money or effects of the.debtor, in the hands of the garnishee, to the payment of the plaintiff’s debt, and also to a recovery in personam against him. Such has been our exposition of it, in several cases. The attachment may fail, but the personal suit may succeed.
The appearance and plea of the defendant, Rush, made this, in addition to the attachment proceedings, a personal suit. His death after plea, but before trial and judgment, put an end to the power of the court to render a personal judgment against him. But We think that the court could proceed to deal with that branch of the case which was in rem against the money or effects in the possession of the garnishee. In order to obtain the fruit of the garnishment, it is necessary that a judgment should be rendered against the defendants attachment; that judgment, however, only avails as one of the necessary means to subject the assets of the estate, in the hands of the garnishee, and when that is accomplished the judgment would have no further virtue. If we are correct in these views, Fisher ought not to have been discharged on his motion. The answer, as We understand it, admits the indebtedness of the estate of Evans to Rush. But upon information and belief, suggests that
The judgment of the circuit court is reversed, and cause remanded for further proceeding in accordance with this opinion.