96 Ala. 183 | Ala. | 1892
Section 2950 of the Code is in the following language: “Money in the hands of an attorney at law, sheriff, or other officer, may be attached; and in the case of officers of the court, the money must be paid into the court, to abide the result of the suit, unless the court otherwise directs.” What is meant by paying money into court — what will constitute such payment — as that term is used in our statutes, and generally in the law, seems to be well defined in this State. The phrase is of more frequent occurrence in the law of tender than elsewhere. When the fact of tender is relied on by plea, in defense of an action, to .the extent of defeating recovery of costs and damages for delay, the money necessary to keep the tender good must be brought or paid into court. This is the common law, as to actions generally, and is the statute law of Alabama, as to several statutory actions and proceedings. — Code, §§ 602, 604, 2729. What is necessary to be done to satisfy this requirement, and to make an efficient payment “into court,” is clearly prescribed by section 2685 of the Code, where it is provided that “a plea of tender of money, . . . must be accompanied by a delivery of the money . . . to the clerk of the court;” and this delivery to the clerk of the court is in turn defined in the statutory form of the plea of tender as constituting the payment or bringing-money “into court,” it being made essential to such plea that it alleges that defendant “now brings the money into court,” i. e., delivers it to the clerk of the court. — Code, p. 796, Form 36. It has never been the practice, and is not deemed necessary, for the court to make an order assuming control of money thus brought in on a plea of tender.
There is no reason for giving to the phrase under consid- . eration a different meaning in section 2950 from that attaching to it in all other statutes in which it is employed. This section itself, so far from necessitating such other significance, is strongly argumentative to show that its purpose in this regard is fully accomplished when money is paid into the hands of the clerk. It is manifest, we think, from the
Of course, money so beld can not be reached by garnishment, unless subjected thereto by statute; no more can money which has come to tbe bands of a sheriff on tbe process of bis court, or which has been paid to tbe clerk on a judgment, or which is received by a register in chancery on a foreclosure sale, be subjected to garnishment, except by tbe terms of statutory provisions. In all these cases,, tbe money is in court in sucb a way that tbe general law deems it important to the administration of justice that tbe court’s custody and control should not be interferred with by tbe processes of other courts, or even its own process in other actions pending or brought before it. So that money in tbe bands of an officer of court is equally exempt from attachment, under tbe general policy of tbe law. whether it has
"We accordingly are of the opinion that the money held by the garnishee, Matthews, under the circumstances disclosed in his answer, was subject to the attachment sued out in this case, so far as its liability thereto is questioned on
The objection going to -the manner of levying the attachment is, we think', ivithtiut merit. The attachment was jmoperly levied by a sheriff’s summons in garnishment. Code, § 2945; Donald Bros. & Co. v. Nelson & Son, 95 Ala. 111.
The judgment of the City Court discharging the garnishee is reversed, and the cause is remanded to that court for further proceedings therein not contrary to this opinion.
Reversed and remanded.