56 Ala. 25 | Ala. | 1876
[After stating the facts as above.] — The Revised Code (§ 2450) provides : “ All final decrees against guardians have the force and effect of judgments at law, upon which execution may issue against them and the sureties on their bonds.” Section 802 says: “ Courts of Probate may issue process of garnishment upon decrees for money, in favor of plaintiffs in such decrees, returnable to their regular terms, upon compliance with the laws respecting garnishments in the Circuit Court on judgments, and may render judgments or decrees on the answers of such garnishees, enforce the collection thereof,” &c. And section 2892 prescribes the mode in which garnishment [process may be sued out upon the judgments of Circuit Courts. It is by these enactments, that the suit must be maintained, if it can be maintained at all.
A proceeding under section 803, against a garnishee, must be founded on a judgment or decree against the person to whom he is supposed to be indebted, and in favor of the plaintiff in the garnishment; and even when a garnishment is served in execution of a writ of attachment in a pending-cause, no judgment can be rendered against the garnishee, until one is rendered against the defendant in attachment; notwithstanding that, for his protection against wrong, the plaintiff must have executed a sufficient indemnifying bond. Gaines v. Beirne, 3 Ala. 114; Leigh v. Smith, 5 Ala. 583; Case v. Moore, 21 Ala. 758; Chambers v. Yarnell, 37 Ala. 400.
Is the decree of a Probate Court, when rendered conform-ably to law, upon the final settlement of a guardian, a decree or judgment against his sureties also? The statute, it is true, says that on such final decrees executions may issue against the guardians “and the sureties on their bonds.”
But, authority to issue execution against a person is not, by itself, a judgment against him. In Philipson v. Mangles, certain plaintiffs had obtained a formal order against persons who were bail on a forfeited recognizance, as follows : “Therefore, it is considered, that the said plaintiffs have their execution thereupon against the bail.” The Court of King’s Bench held, that this was not a judgment. Lord Ellenborough, C. J., said: “ It is an award of execution, and not a judgment, properly so called.” — 11 East, 516. And this court held, in Hoogland v. Jewett (30 Ala. p. 718), “ that the mere naked liability of the sureties to an execution, resulting from the return of nulla bona, is not such a judgment
So far as the question involved in the cause before us is concerned — the question whether there was a judgment upon which process of garnishment could be sued out against appellant, Erank P. Smith — the rulings and opinion in the case last cited, and in Clarke v. West, supra, are directly in point; and they arose under similar statutes, that differ from section 2450, supra, in no particular which affects their authority as precedents in the present case. The acts under which those cases were determined — section 2281, and an old statute which is, in effect, embraced in that section — related to executors and administrators, and provided that, upon executions on final decrees for money, of the Probate or Orphans’ Court, against them, being returned “no property found,” then executions might run against the sureties on their bonds also; while the law under which the case now before us is to be determined — B. C. § 2450 — relates to guardians, and differs from that above referred to, only in authorizing the issuance of executions against the sureties, on the judgment against their principal, the guardian, luithout a return of no property of his to be found. In either case, the execution against the sureties is founded on the decree against their principal, and upon the bond they signed for him, and not at all upon any judgment or decree against them. This was plainly the idea that inspired the vigorous reasoning in the opinion in Jewett v. Hoogland, supra; in which, also, an inaccuracy relating to this matter, in the opinion in Thompson v. Bondurant (15 Ala. 346), is pointed out and corrected. It is to be borne in mind, that the decree to which the part of section 2450 quoted above relates, is that which is passed at the final settlement of the guardian’s accounts. He is a party, and in court; and when, at the conclusion of his accounting, it is ascertained how much of his ward’s money he has in hand, — against him, very properly, the law authorizes a decree that shall have “the force and effect of a judgment at law.” This decree it is his duty to pay; nor does the law presume he will not pay it, when required to do so. If he should not, a writ of execution on it can, of course, be taken out against him; and the statute provides that it may be taken out against the sureties on his bond, also — that is, against the persons who appear thereby, but have not been adjudged, to be such sureties. To see who they are, the bond must be looked up; and upon it— not upon a decree that has the force and effect of a judgment at law — the execution is issued against them.
But why, it may be asked, should not garnishment process be issued, and a judgment be rendered, against a garnishee, as debtor to a surety for an executor or guardian, if an execution may be issued against such surety ? To this there are more than one sufficient answers. First, unless the statute had authorized it, no execution could be had against the property of the surety; and the statute does not authorize anything but an execution. A second reason is, that a judgment, ascertaining the fact of suretyship, ought first to be obtained against the person sought to be charged as surety; because, if not, then a judicial appropriation, conclusive in its nature, of moneys due to the supposed surety, is made to a third person, to whom the supposed surety may really owe nothing at all, and the latter be thereby injured beyond remedy. The process of garnishment is not against him, and, therefore, it is not required that it be served upon him. He might reside at a distance, and never hear anything of the proceeding. Without any notice to him, a judgment might thus be rendered against his debtor, the garnishee, upon the mere answer of indebtedness by the latter; the payment of which judgment by the garnishee to the plaintiff, whether under the coercion of an execution, or made, as it might be, voluntarily (Mills & Co. v. Stewart, 12 Ala. 90; Gunn v. Howell, 35 Ala. 144), would forever discharge the garnishee, and at the same time pass the money he owed to the supposed surety, into the hands of a person who might not have any just title to it. For it might be, that the supposed surety could show that he had been released from the bond, or that it had been cunningly altered to make him liable for an admin
The proceeding by garnishment is a summary and statutory remedy; and the Probate Court is not one of general jurisdiction. In such a case, its acts and rulings are void, if the record does not show existence of the jurisdictional facts upon which depends its authority to proceed and render judgment. In this instance, those jurisdictional facts did not exist. The supposed judgment against the garnishee, in the Probate Court, is, in law, no judgment at all. It follows, that the bill in this cause, founded upon it,- is, for that reason, without equity, and must fail.
Let the decree of the chancellor, overruling the demurrer, be reversed; and the bill, it not being amendable, be here dismissed. The next friend of the appellee must pay the costs in this court, and in the Chancery Court.