40 So. 96 | Ala. | 1906
Lead Opinion
The plaintiff, B. E. Collins, commenced a suit by attachment in the circuit court of Jefferson county against, the defendant, Pacific Selling Company, on the ground of the non-residence of said company. The attachment was issued on the 15th of July, 1903, and was levied on 1,062 cases of salmon as the property of the defendant in attachment. Tlie return of the sheriff was made July 15, 1903. On the 3d day of March, 1904, the plaintiff filed his complaint, and on the following day, namely, the 4th day of March, 1904, judgment was rendered in .favor of the plaintiff, against the defendant on appearance of the parties, as shown by the minute entry, for the sum of $1,950. In tlie judgment entry 62 cases of the salmon levied on were condemned to sale; the other 1,000 cases having been claimed by a third party.
On the same day that the judgment was rendered an alias writ of attachment was issued in the usual form. The alias writ was executed on the 3d day of March, 1904, by the sheriff summoning the W. L. Murdock Brokerage Company and others as garnishees of the defendant in attachment. On the first day of. April, 1904, the W. L. Murdock Brokerage Company answered that it was not indebted to the defendant, that it will not be liable to defendant for the delivery of personal property, or for the payment of money which may be discharged by the
That section is applicable only when there is a liability on the part of the garnishee to the defendant for the delivery of personal property; for instance, a contract by Avhic.h the garnishee has promised to deliver to the defendant personal property in discharge of the contract, oi- Avliere the garnishee is liable to the defendant for the payment of money which the contract creating the liability stipulates may be discharged by the delivery of personal property. The garnishee’s answer shows no liability of the kind mentioned in either category. So far as the ansAver goes, the title to the salmon Avas never in the garnishee, and it- never asserted any title to the salmon. On the contrary, the ansAver expressly alleges that the 85 cases of salmon belonged to the defendant in attachment. In this state of the case, Ave think the ansAver of the garnishee falls clearly within the provisions of section 2193 of the code, and that the court in rendering judgment should have conformed to that section.
In Jones v. Crews, 64 Ala. 368, § 2193 of the code was to some, extent construed. At that time (1879) § 2192 of the code did not exist, and there Avere only two classes of cases in which judgment might be rendered in favor of the plaintiff in garnishment: “First, where a debt
Garnishment is a proceeding of purely statutory creation, and while the court is inclined to construe it favorably, as remedial and beneficial, yet, being a statutory proceeding, parties seeking to collect debts through its aid must conform substantially to the requirements of the statute. TYe think it clearly appears from an inspection of the judgment rendered against the garnishee that it fails to substantially conform to code 1896, § 2193, even if it might be considered that the court was attempting to comply with that section.
As the answer of the garnishee did not authorize or. empower the court to proceed under section 2192 of the code, and the judgment is fatally defective as a judgment under section 2193 of the code, the judgment against the garnishee must be reversed and the cause remanded.
Bevevsed and remanded.
Rehearing
(On rehearing.) — We all concur in the conclusion that instead of remanding the cause the judgment of the lower court should be reversed, .and that a judgment should be here rendered against the garnishee (appellant) on its answer in favor of the plaintiff (appellee), to conform to section 2193 of the code of 1896, and it is so ordered. The costs will be adjudged against the appellee.
Reversed ánd rendered.
