Locket v. Child

11 Ala. 640 | Ala. | 1847

GOLDTHWAITE, J.

1. The garnishee insists that he is called on to answer only what he is indebted to the defendants jointly, and that it was irregular for the court to compel him to join issue on his indebtedness to one of them only, and that no judgment can be rendered on the verdict ascertaining such indebtedness. No authority has been cited to sustain this position, and we are constrained to think it untenable. There is no question that an execution on a joint judgment binds the separate goods of each defendant, and there seems no good reason why garnishee process should not reach the separate debts in a similar manner. In Tillinghast v. Johnson, 5 Ala. Rep. 514, we say, “the levy of an attachment on property is a substitute for, and precisely equivalent to service of personal process, and such levy creates a lien on the property attached, whether it be a chattel seized by the sheriff, or a debt in the hands of a garnishee.”

It is true that there we considered a debt due from an estate represented by the garnishee as its executor, was not attached by process of garnishment against the individual, but this decision proceeds on the ground that the debt is not due from him, but from the estste which he represents. Here, on the contrary, the debt is due from the garnishee to one of the debtors, and if instead of a debt, the thing attached was a chattel, there would be no doubt it would be bound, although belonging to one of the debtors only. It can scarcely be supposed that if a garnishee was to answer that he had the personal effects of one of the debtors in his possession, these would not be bound, and why should a different rule obtain when the subject of garnishment is a debt ? We think the reasonable construction of the attachment law is, that the service of garnishee process, where there are joint defendants, has the effect to create a lien on debts due to each of the defendants separately. The consequence of this opinion is, that the answer of the garnishee should have negatived the existence of indebtedness to either of the defendants, and therefore, although it would have been more proper to have required such an answer, there was no injurious error in requiring the garnishee to join in the issue propounded, or in giving judgment on the verdict.

2. The question as to the continuance is one which cannot be revised in an appellate court. All such matters are purely of discretion, and not the subject of revision, although the court may have taken a mistaken view of what were the rights of the parties, to compel the personal attendance of the witness. Independent of this, if the court had refused improperly to compel the attendance of a witness, it is conceived the remedy would be by mandamus.

3. The ground assigned as a reason why the witness should have been rejected is, that he shows himself to be an agent in the transaction between Locket and William Hart-ley, and that prima facie he is bound to William Hartley for the value of the note on Gary. From the obscurity of the bill of exceptions, there is some difficulty in ascertaining, without the aid of the second, what was the motive which induced Locket to aid the witness in the mortgage transaction. We infer from the statement of what the witness said, that debts were due both to McCraw and Locket, but that the former had the priority of lien. Assuming this to be the case, the note of Gary, if lost to the witness, created a debt there, and if lost to Locket, left the debt due by the witness to him, undiminished to the same extent. It is then clear, that however the suit may result, the witness is still the debtor, either to his brother or to Locket, and thus a case of balanced interest is presented, which, according to all the cases, lets in the witness. [Hallet v. O’Brien, 3 Ala. R. 455.]

4. The allowancé of parol evidence to show that the assignment of the mortgage by McCraAv was made as well for the benefit of William Hartley as of Locket, does not seem to us to be liable to exception on the ground that it varies the eifect of the instrument. The effect of the assignment is to aid in conveying the title of the slaves to Locket, but the object for Avhich the title is conveyed is as much open to explanation as it would be if these had been conveyed by any other mode of assurance. When therefore it was proposed to be shown that the assignment was for the benefit of Hart-ley in part, it Avas nothing more in effect than the recognition by Locket, that a part of the funds paid out to McCraw were derived from that source. We think the evidence \yas properly admitted.

5. There is one other objection to the judgment. It is said the garnishee is not responsible for the costs of the suit against the principal debtors. He certainly is not thus responsible, as constituting a part of the costs of the garnishee suit, but as these costs form a part of the debt which is oAving to the plaintiff, and as the debt Avhich the garnishee owes is sufficient to cover these as well as the principal sum, he was rightfully condemned to pay them, and will be allowed their amount as a payment to Hartley, the debtor.

There seems to be no error in the record. Judgment affirmed.