28 Ala. 488 | Ala. | 1856
By section 2520 of the Code, the amount of money which will be due to a distributee, on the final settlement of an estate, is subject to the process of garnishment, sued out against the administrator by the judgment creditor of the distributee; and if the administrator, in answer to such garnishment, admits assets to pay the amount claimed, or
The real owner of the judgment against such distributee is his judgment creditor, although the judgment may have been rendered in favor of another person as the plaintiff of record; and such real owner, being the judgment creditor, is entitled under section 2471 of the Code, upon making the affidavit therein prescribed, to sue out such garnishment. But in such case, he cannot sue it out, or take judgment thereon, in his own name; for, although such proceeding by garnishment is the institution of a suit, yet such suit is consequential to the judgment in the principal case, is designed as a remedy for its collection, and must be commenced and prosecuted in the name of the plaintiff in that judgment, no matter who may be its real ower. — Blair v. Rhodes, 5 Ala. 648.
When the garnishment suit is thus commenced and prosecuted, the garnishee cannot raise the question as to the ownership of the judgment in the principal case. He has no interest in such a question. The protection afforded to him by such a proceeding will not be destroyed, nor varied, by the mere fact that the judgment in the principal case does not belong to the plaintiff in whose name it was rendered, but to a third person.
Conceding that the garnishee may show that the judgment in the principal case has been satisfied, and that a statement of such satisfaction in his answer is to be taken as true, when not controverted or disproved; yet these concessions are unavailing to the garnishee in the present case, because there is no evidence of the satisfaction of the judgment under which the garnishment was sued out, and no statement in Ms answer that said judgment has been satisfied. The statement in the answer is, “ that he is advised and believes” that said judgment has been satisfied. It is clear, that an averment “ that he is advised and believes” that a fact exists, is not an averment that such fact does exist. If issue were taken on such averment, the issue would be, not as to the existence
We concede that it would have been erroneous to render judgment against the garnishee, without proof of the judgment mentioned in the affidavit. — Blair v. Rhodes, supra. But, as that judgment is well described in the garnishment, to which the garnishee made his answer, and as the judgment entry against the garnishee shows that he appeared in court, and “ waived the objection that no judgment could be rendered because no execution could issue on the judgment,” we hold, that his admission, contained in this waiver and in his answer, is an admission of the existence of “ the judgment” described in the garnishment, and is sufficient proof of its existence as'against him in this proceeding.
It appears, also, that he waived the objection that the estate of his intestate had not been settled. And the only error we discover in the record is, that the judgment against him is not rendered in favor of the plaintiff in the judgment described in the affidavit and garnishment, but in favor of Temperance Shipman, who made the affidavit for suing out garnishment, and therein swore that she was the owner of that judgment. But this error is amendable; and inasmuch as the affidavit and garnishment both correctly describe the judgment, and thus furnish the means of making the amendment, we shall allow the judgment to be here amended, so as to show that it is a judgment against the garnishee, in favor of the plaintiff in the judgment in the principal case, and not in favor of Temperance Shipman. This amendment being made, the judgment must be affirmed, at the costs of the appellant — Smith v. Redus, 9 Ala. 99; Collins v. Hyslop, 11 Ala. 508; Hood v. Br. Bk. at Mobile, 9 Ala. 335.