91 Tenn. 473 | Tenn. | 1892
On May 9, 1891, the defendants in error recovered a judgment against one Skeats for $75.25 before a Justice of the Peace for Shelby County. On this judgment an execution was sued out May 27, 1891, and, no property having been found, garnishment was, on that day, served upon the plaintiffs in error, commanding them to appear and answer on June 25, 1891, on which day the garnishees appeared, and filed answer that the said Sheats was indebted to them in the sum of $124.50; that he was their employe, on a monthly salary of $100 per month, and that no money had been paid him since the service of the writ of garnishment. On this answer the garnishees were discharged, but immediately an alias execution was issued, and another garnishment was served upon the plaintiffs in error, notifying them to answer on July 25, 1891, on which day they filed, answer, setting forth that, since June 25, 1891, the debtor, had earned in their employment, and had been duly credited with, the sum of $100, and that they had loaned him $100 since that date, and that he was, on that date, indebted to them in the sum of $104.50. On this answer the garnishees were again discharged. Immediately a pluries execution was issued, and another garnishment served, notify
On the trial in the Circuit Court, the plaintiffs in error appeared, and, upon oral examination, substantially stated that what was meant by the statement that $100 had been “loaned” the debtor, and the truth of the matter was, that, upon the service of the first garnishment, the debtor, who was one of their employes, came to them, and, in substance, stated that he had a family to support, and if his monthly salary was to be tied up or absorbed in this way he would be compelled to abandon their employment and seek a livelihood in some other way elsewhere; that they desired his services, and, in order to retain them, agreed to pay his monthly wages in advance, which had been accordingly done.
IJpon this answer, His Honor, the Circuit Judge, rendered judgment against the garnishees. This was erroneous. To authorize such a judgment, it must clearly and obviously appear that the garnishees were indebted to the debtor, or that a debt had existed, which had been seized and impounded by the garnishment. Obviously, the garnishees were not then indebted, nor, so far as this record shows, had they ever been. 2 Bax., 296; 4 Heis., 339.
The judgment is defended before us on a charge
¥e are not persuaded that this was fraud. It is true the debtor was under obligation to pay the debt, but he was under higher legal and moral obligation to support his family. 2 Head, 515; 5 Sneed, 39. To comply with this obligation, there is nothing illegal nor immoral in demanding pay for one’s services in advance.
As to the plaintiffs in error, they were under no obligation whatever to the defendants in error. What right has a creditor to say to an employer, “You must not pay your employe in advance, but allow his.wages to accumulate, so that a fund may arise in your hands from which I may realize my debt?”
One question remains. Of course, if, at the time of the service of the garnishment, a debt was in esse, due or undue (questions as to negotiable and assignable paper being out of the way), the same may be seized and impounded; but if nothing whatever is due, nor any debt exists not yet due, may you summon an employer before a Justice month by month, or before a Court term by term, and thus prevent any payment of wages to him, as was attempted in this case? Can this writ
The execution of a writ at law cannot seize a thing that has no existence. An after-born thing— for instance, a debt — cannot be born into a levy that had previously been made, unless it be controlled by a statute, clear and unambiguous in its terms. This principle is conceded in this case, but it is insisted that our statutes go to that extent. Mr. Drake commends such laws for the convenience of collecting debts, and quotes Alabama and Missouri as having passed such Acts.
We do not so construe our statutes. In Code, §§ 3800, 8801, great latitude is very properly given to the creditor as to what questions he may ask the garnishee, like a bill of discovery, which may help him in his search for assets. Yet, in the subsequent section, where it speaks, among other things, of “debts” as being held liable under the writ, it does not mean an intangible expectancy, depending on the will of the debtor, but a chose in action in existence at the moment of the levy. Drake on Attach., 559; 117 Mass., 238; 38 Conn., 290; Free, on Ex., Vol. I., Sec. 164; 51 Mich., 115.
This construction of the statute and of the answers of the garnishees compels a reversal of the judgment below.
Judgment will be rendered here for the garnishees, with costs.