Kellogg v. Freeman

50 Miss. 127 | Miss. | 1874

Simrall, J.,

delivered the opinion of the court:

The plea alleges that defendant.had been summoned as garnishee, in an attachment suit, brought by O. M. Battaile and O. E. Hu’obell, against Freeman, and that be had answered that he was indebted to Freeman in the amount and for the identical cause sued for in this action ; that he has never been discharged, but the attachment suit is still pending and undetermined. To that plea a demurrer was sustained. Does the plea contain matter sufficient to bar the recovery ?

The service of the summons on Kellogg, the defendant, was the first of a series of steps necessary to transfer and appropriate the •debt owing to Freeman, to his attaching creditors. In order to condemn the debt to the satisfaction of Freeman’s indebtedness to his creditors, the plaintiffs in the attachment must sustain their writ, if controverted, and must also recover a judgment against Freeman, and not until there has been recovery against Freeman, can a judgment be taken against Kellogg, on his answer. If the creditors should fail to sustain their attachment, and recover against Freeman, the garnishment would be of no effect. It is the duty of the garnishee to see that these conditions precedent are complied with in order to protect himself against Freeman, his creditor. The judgment against the garnishee is the efficient thing by which the relation of creditor and debtor is dissolved between Kellogg and Freeman, and established between Kellogg and ibe attaching creditors. Until that judgment is pronounced, it has not been judicially determined that Kellogg is released from liability to Freeman, and declared to be debtor to the attaching creditors. By such judgment the debt is transferred by operation of law, and inures to the benefit of Freeman’s creditors, and to pay them. Roberts v. Barry, 42 Miss. Rep.; Drake on Attachments, 306, § 460.

The argument in support of the plea is, that unless the defense can be made, Kellogg may be adjudged in this suit to pay Freeman, and in the attachment suit to pay Battaile and Hu-bbell.

The remedy for Kellogg, is provided in section 1451, code of 1871, to pay into court “ the amount of the debt,” suggesting that Battaile and Hubbell claim title to or an interest in the debt, “ and cause a citation to issue to them, to appear and contest with Freeman their rights. Thereupon the court shall suspend all further proceedings,” * * etc.

This special statutory procedure was borrowed from equity jurisprudence. The ground of the interpleader in a court in equity is, “ that the party himself claims no right in the subject matter, but he is, or may be vexed by having two legal, or other processes in the names of different persons going on against him at the same time. 2 Story Eq. Jur., § 807. Where a controversy exists between two claimants of a debt as assignor and assignee, the debtor may make them interplead to settle the point of right. Lownds v. Cornford, 18 Ves., 299 ; 2 Story’s Eq., § 808. This is an accurate delineation of the dilemma in which Kellogg is involved. The statute devolves upon the circuit court, in a simple method, the jurisdiction to settle the “right” between the contestants. It was because the common law was inadequate to give complete protection against conflicting claimants, that the statute conferred the special remedy.

We think that the mere pendency of the attachment suit, and adjunct garnishment process (no final judgments against the defendants thereto having been rendered) cannot be pleaded in bar of this suit.

The judgment is therefore affirmed.