Montgomery Gas Light Co. v. Merrick & Sons

61 Ala. 534 | Ala. | 1878

BRICKELL, C. J.

The purpose of a garnishment is the appropriation of the debt owing by the garnishee, or the effects in his custody, to the satisfaction of the demand of the plaintiff against the' defendant in the suit. After service of the garnishment, the garnishee stands in the relation of a stakeholder, and is supposed to be indifferent as between the plaintiff and the defendant. From all personal liability, and from all peril of future controversy, he may protect himself by payment into court of the debt he may owe, or by the delivery of such property in his hands, as may be subject to the garnishment. — Drake on Attach. § 661. Standing in this relation of indifference between the plaintiff and the defendant, the court will protect him against the jeopardy of a double satisfaction, if he is sued by the defendant. When the suits are pending in the same court, there can be but little difficulty in so moulding the judgments, that full protection will be afforded him, and at the same time preserving the rights of the plaintiff and the defendant. And when, as in the present case, the suits are pending in different courts, the court in which the defendant is suing the garnishee, will, on a proper application, stay proceedings until the garnishment is determined, or render judgment with a stay of execution, which can be subsequently removed, or rendered perpetual, in whole or in part, as justice may require.— Crawford v. Slade, 9 Ala. 887. Or, if the defendant has obtained judgment, and a garnishment subsequently issues, execution on the judgment will be stayed, on the giving by the garnishee of sufficient security to protect the defendant from loss, if judgment is not obtained on the garnishment. — Skipper v. Foster, 29 Ala. 330. A payment by the garnishee of a judgment rendered against him, protects him, though the judgment is irregular, and is subsequently reversed for irregularity. — Duncan v. Ware, 5 Stew. & Port. 119; Gunn v. Howell, 35 Ala. 144. He may satisfy such judgment, without waiting until he is coerced by execution. — Mills v. Stewart, 12 Ala. 90. The judgment is conclusive, as between the garnishee and the defendant, unless the defendant appeals, of which the garnishee has notice. And the appeal does not prevent the garnishee from satisfying it, unless the judgment is superseded by bond. — Code of 1876, § 3316.

In the present case, the garnishment was dissolved, the bill of the complainant was dismissed, and it was ordered, that if the complainant within thirty days appealed from the decree, the garnishment should be restored, if she executed a supersedeas bond in the sum of one thousand dollars, payable, and with condition as prescribed by the statute, (Code of 1876, § 3928.) Within thirty days, without executing the bond, the complainant merely giving security for costs, sued out an appeal to this court, which is yet pending and undetermined, giving the garnishee notice of the appeal. The garnishee thereupon applied to the judge of the Circuit Court, in which his creditor had obtained judgment against him, to stay proceedings on the judgment, until the termination of the appeal. The stay was refused, and from the judgment this appeal is taken.

The authorities relied on, to support the right to a stay of the proceedings, are those to which reference has been made; but they stand on different grounds, and proceed on reasoning Avhich has no just application to this case. The statutes hae very carefully regulated the mode of prosecuting appeals, and have very clearly defined their effect, and the rights of parties during their pendency. An appeal can not be taken, unless the appellant give security for the costs, and the names of the sureties are certified to this court; and the certificate is part of the record, authorizing the issue of execution against the sureties for costs, if the appellant is unsuccessful. — Code of 1876, § 3950. Such an appeal does not operate to stay the execution of the judgment or decree, from which it is taken. If a suspension of execution is sought, a bond with sufficient securities must be executed by the appellant or some person for him. When the judgment or decree, is for the payment of a fixed sum of money, the statute prescribes as the penalty of the bond, double the amount of the judgment, and as its condition, the prosecution of the appeal to effect, and the satisfaction of such judgment as this court may render in the premises. — Code of 1876, § 3927. If the judgment or decree is not for the payment of money, and its suspension pending an appeal is sought, the chancellor, or register, or judge of the court, in which it was rendered, may fix the amount and penalty of the bond, which is to operate as a suspension, or supersedeas of the judgment or decree. — Code of 1876, § 3928. In either case, a bond with sufficient security, to protect the party temporarily deprived of the right of enforcing the judgment or decree, from all damage by reason of the suspension of execution, is a condition precedent, the statutes clearly prescribe. At common law, a writ of error, (and an appeal under the statute is a substitute ior the common law writ of error,) was a supersedeas of execution from the time of its allowance. The court issuing it would, if it was not apparent the writ was sued out merely for delay, stay any proceeding on the judgment, during its pendency. — 1 Tidd. Pr. 530. The plain purpose of the statutes, is a change of this rule of the common law; depriving the appeal of the inherent capacity to supersede the execution of the judgment or decree. That capacity does not now attach to the appeal — a bond with sufficient surety, is indispensable to stay execution. It is the condition on which the proceedings may be stayed pending an appeal, prescribed by the statute, and courts have no power to dispense with its performance, or to substitute any other terms in place of it. — Hogan v. Ross, 11 How. 294.

Nor is there the necessity for a stay of proceedings, to protect the garnishee from being made liable to his creditor,, and to the plaintiff in the garnishment, which exists, when-the garnishment is sued out prior or subsequent to the suit - or judgment of his creditor. The judgment or decree dissolving the garnishment, is subsisting, of full force, and the creditor is entitled to enforce the collection of the debt. If ’ the garnishee pays voluntarily, or under legal process issuing on a judgment obtained against him by his creditor, he-has the protection of a valid judgment discharging him from liability to the plaintiff in the garnishment. The subsequent reversal of that judgment, whatever claim for restitution the plaintiff in the garnishment may acquire thereby against the defendant, can not retroact, so as to restore the liability of the garnislaee to him. The case of Sherrod v. Davis, 17 Ala. 312, is not in conflict with this view. The court is there speaking of a judgment suspended byaiorit of error or appeal, and not of a judgment, which a pending writ of error or appeal does not suspend, and which the statute in effect declares shall not operate a suspension. The judgment of the circuit judge is affirmed.