Presnall v. Mabry

| Ala. | Jan 15, 1836

Hitchcock, J.

The defendant in this court, who was plaintiff below, recovered judgment in the Superior Court of Clarke County, at the September Term, 1819, of said Court, against one William La-tham. The entry of judgment was in the following words: “ Judgment by default, claimed by T. Murray, Esq.: granted;” upon which various executions issued, all of which were returned, unsatisfied.

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 John Latham, that he had purchased, of the said William Latham, all his interest in the estate of Harvey Presnail, in right of his, (William Latham’s,) wife; and that he had been shewn a transfer and conveyance from William Latham, to John Latham, which, he states, is on record in the County Court of Clarke County.

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.

If the alleged transfer to John Latham was valid, no interest ever could accrue to William Latham.— If he should die before receiving his wife’s share of the estate, it would go to her, and would not be subject to his debts; and, if she should die before he should receive the amount, then the estate would go to her heirs.

The judgment must, therefore, be reversed.