39 Ala. 468 | Ala. | 1864
The answer of the garnishee in this case states, that, before answering, notice had been given to it that one Eenshaw claimed that the indebtedness of garnishee had been assigned to him, for the benefit of the creditors of Thos. J. Casey & Co., the attachment debtors. Upon this answer, no judgment could have been rendered against the garnishee, without a compliance with the terms of the statute—Code, § 2549 et seq.—See King v. Murphy, 1 Stew. 228; Robinson v. Rapelye, 2 Stew. 86; Colvin v. Rich, 3 Porter, 175; Stubblefield v. Haggerty, 1 Ala. 38.
The plaintiff in attachment, however, has pursued the statute in regard to giving notice to the transferree; has put
The answer of the garnishee, while it denies, “ as it is advised” all indebtedness to said Thomas J". Casey & Co., in any sum of money, which was or is subject to garnishment by said plaintiffs in this suit, admits “that it is true said company did owe money to said Thomas J. Casey & Co.; but it was under such circumstances as compelled this garnishee to pay the same as hereinafter shown. The answer further states that Casey & Co. failed, and that a syndic was appointed in New Orleans, “who claims ali the assets of said Thomas J. Casey & Co., and who also claimed the control of the iron of this garnishee, as it seems.” The answer proceeds: “The said Thomas J. Casey & Co. were commission-merchants and traders, doing business in New Orleans; that this company did cause to be consigned to them a certain quantity of iron, which was the property of this company, and which was shipped to New Orleans; that the same was received by said Thomas J. Casey & Co., and they caused said iron to be stored, and the price of the storage was due by this company to said Thomas J. Casey & Co.; but they had possession of said iron in New Orleans. This garnishee further answers that,-on this occurrence, it sent its agent to New Orleans» to claim its iron from said syndic, and that some difficulties intervened, so that a proceeding in court became necessary; and that a lien being claimed on the iron, they were unable to obtain the same, except on terms of payment of the claim for storage of the iron, for which a Hen on the property existed.” The answer then proceeds to state that, on
If, under the answer of the garnishee, and the proceedings upon it, the plaintiffs, J. P. Whitney & Co., were entitled to a judgment against the railroad, it is manifest that no payment made by it afterwards, without their consent or legal privity, could defeat that right. Such payment would be in its own wrong. On the hypothesis that Whitney & Co. were entitled to the money, the railroad, by paying them, would have acquired a perfect right to the possession and control of the iron, and could have maintained a successful suit for it, on the proper averment and proof of these facts. It does not help their case, that Casey & Co., or the syndic, held their iron, and refused to surrender it, until the charges for storage were paid to the syndic. The railroad, on the best phase of the case which it has made for itself, could have forced the surrender of its iron, by suit, without repaying the charges upon it to either Casey & Co. or the syndic. The alleged hindrance or delay of the railroad in getting control of its iron, may have caused serious loss; but this can not overturn a well-
The judgment is affirmed.