3 Port. 105 | Ala. | 1836
The defendant in this court, who was plaintiff below, recovered judgment in the Su
On the 17th January, 1832, one William Robinson made oath, in the usual form, applying for a summons against the present plaintiff in error, as a garnishee of Latham.
At the April Term, 1832, of the Court, various motions were made — such as to quash the executions which had issued; to quash the proceedings of garnishment; for judgment, nunc pro tunc, on the original judgment — which it is unnecessary to notice, in the view which the Court has taken of the case.
At the same term of the- Court, E. Presnall, the garnishee, answered, that, “in August, 1831, one Harvy Presnall, the brother of the garnishee, died, leaving no wife or issue, having considerable estate, real and personal; that the heirs of said Harvy Pres-nall were his brothers and sisters, to wit: Absalom, James and Elijah Presnall, and Clara Latham, a sister, and, who is the wife of the defendant in the original suit. — That, in September, 1831, Elijah, the garnishee, was appointed adrninistator of the éstate of his brother, and took possession of his goods, amounting, in all, to about sixteen hundred dollars, all of which were in his hands, when he was summoned.
He further states, that before notice of the summons of garnishment, he had been informed, by one
Upon this answer, after the Court had allowed an entry of judgment nunc pro tunc, in the original suit, against William Latham, the Court gave judgment in favor of Mabry, against Elijah Presnall, the garnish ee, for two hundred and twelve dollars and eighty-five cents.
Without deciding any question as to the legal effect of the entry of the judgment nunc pro tunc, in ¿id of this garnishment, and, also, without deciding whether an administrator can be garnisheed, in any case, on the ground of his having effects which he may be ultimately liable to the heirs, for — we think there is manifest error, when the case is viewed in reference to the answer alone.
It is a clear principle of law, that a judgment cannot be rendered, on the answer of a garnishee, against him, unless there is a distinct admission of a legal debt, either due, or to become due, by him, to • the defendant in the original suit.
In this case, in the first place, the summons issued within six months after the grant of letters of administration, within which period no suit can be brought against an administrator. In the second place, no subsisting legal debt is admitted. The effects in his hands were yet to be administered — the debts were to be paid, and the amount, if any, due the heirs, yet to be ascertained.
The judgment must, therefore, be reversed.