40 So. 970 | Ala. | 1906
The case, was tried on an agreed statement of facts, from which it appears, “that on April 24th, 1903, a valid decree was rendered in the chancery court of Mobile county, Alabama, in a suit therein pending entitled Mary L. Nathan v. David S. Nathan, No. 7,348, v hich, among other things, ordered, adjudged and decreed, “that the. complainant be allowed, out of the estate of the defendant, the further sum of f250.00 for the services of her solicitor, in the prosecution* of this cause, and the said defendant is ordered to pay this sum of |250.00 to John R. Tompkins, Esq., the solicitor of the complainant, or into the registry of this court for his use and benefit, within the next ten days.”
It was further agreed that on the 29th of April, 1903, two writs of garnishment were issued out of the circuit court of "Mobile county, in the case of Ellen F. St. John v. John R. Tompkins, to Charles K. Holt, as register in chancery and David S. Nathan as garnishee; that on May 26th the said Holt filed his answer denying all indebtedness, etc. (which answer was not contested) ; that said
It is further agreed that a contest of the answer of said David S. Nathan was properly made, at the last term of this court (the term at which said answer was made), and was continued until this term, and the said John R. Thompkjns agreed for Mrs. Nathan to accept the $75.00 in full and cancel and satisfy the decree.
The court rendered judgment on the trial of the contest, against said David S. Nathan for $250.00, besides the costs created in the cause, to reverse which he prosecutes this appeal.
Fraud not intervening, the garnishment operates only on the legal rights of the defendant in attachment or judgment — such rights as he could enforce by action at law in his own name. If it is a demand due and owing
“With the exception of cases of conveyances, or transfers, a garnishment cannot be employed to reach or subject any debt, or any demand, the debtor, suing in his own name, cannot recover in an action ex contractu, or, as it is generally stated, in an action of debt, or indebitatus assumpsit." — Cunningham v. Baker, 104 Ala. 169, 16 South. 68, 53 Am. St. Rep. 27; 1 Brick. Dig. 175, § 314.
• “It has long been recognized as the appropriate common law remedy for the recovery of definite sums of money declared to be. due and payable by judgments of courts of record.”' — 5 Ency. Pl. & Pr. 904.
In Morrison v. Morrison, 3 Stew. 444, it was held that an action of debt will lie on a decree or order of the judge of the county court directing the payment of a sum of money, which does not appear from inspection to be void.
“At common law it is necessarily implied that every person is bound, and actually agrees to pay such particular sums of money as are charged on him by the sentence, or assessed by the interpretation of the law. What sum, therefore, the laws order any one to pay, that instantly becomes a debt, which he hath beforehand contracted to discharge.” — Denison v. Williams, 4 Conn. 402; 5 Am. & Eng. Enc. Pl. & Pr. 905, note; Am. & Eng. Ency. Law (2nd Ed.) 983;Allen v. Dickson, Minor. 120.
It would seem to be very well settled, therefore, when the chancery court rendered a judgment in favor of defendant in garnishment, John B. Tompkins against David S. Nathan, for $250 the amount became a debt from Nathan to Tompkins, for which the latter might have maintained an action against Nathan, and that the writ of garnishment was a proper remedy, on the part of plaintiff, to condemn the debt towards the payment of her judgment.. She acquired all the rights thereby against Nathan that Tompkins had, and substituted her as a judgment creditor, to the place and stead of the original
The service of the garnishment created a lien on the debt or demand due or owing from the’garnishee, a lien which was inchoate but which was perfected by the judgment of condemnation. Before this judgment was rendered, after-the service of the garnishment writ, this lien was incapable of impairment by any agreement or transaction between the defendant and the garnishee, or by any act of either. — Id.
The alleged settlement between Mrs. Nathan, and her attorney, Mr. Tompkins, and David S. Nathan, was of no consequence in defeating the rights of the plaintiff in garnishment. The court below so held, and we have not been shown that the holding was erroneous.
Affirmed.