107 Ala. 386 | Ala. | 1894
The causes of demurrer directed to the validity of the judgment against the defendants in attachment, were not well taken. Mere defects or irregularities in the process or in the j udgment against the defendant in attachment, are not available to a garnishee. 1 Brick, Dig. 182, § 405, It is only when the process is void, incapable of supporting, a judgment, or the judgment is void for a want of jurisdiction apparent on the face of the record, and of consequence not affording the garnishee protection against the claim or demand of the defendant in attachment, if he yields obedience to the separate judgment against himself, that he can be heard to impeach the one or the other. 1 Brick. Dig., 182, § 406. The judgment against the defendants in attachment would have been more regular and free from error, if it had recited that notice of the attachment and levy had been given in the mode and for tiro length of time prescribed by the statute. (Code, § 2936.1 On error, the irregularity would not have been cured by the general recital in the judgment entry that legal notice by publication had been proved, and the judgment would have been reversed. — Dow v. Whitman, 36 Ala. 604; Brinsfield v. Austin, 39 Ala. 227. The coixrt rendering the judgment is a court of general jurisdiction , and error or irregularities in the course of its proceedings do not affect the validity of its judgments when collaterally drawir in qxxestion; nor does the silence of its records create a presumption of a want of jurisdiction. Besides, if the defendants in aitachment are properly joined as complainants, affirming or acquiescing in the judgment, the defendant, the garnishee, can not for them dispute its validity, or question its sufficiency for his protection, the only matter in which he has an interest.
A garnishment is essentially a statutory remedy;
The service of a garnishment creates a- lien on the debt or demand due or owing from the garnishee, a lien which is inchoate, but is incapable of impairment by
The purpose of a garnishment is to compel the garnishee to pay to the plaintiff the debt he owed the defendant ; and the operation and effect of the judgment of condemnation, is the substitution of the plaintiff as the creditor, in the stead and place of the defendant. Payment to him extinguishes the debt, as fully as payment to the defendant would have extinguished it, if made before the issue and notice of the garnishment. The change of creditors works no change in the obligation or incidents of the debt. These follow the debt, as they would follow, if the change had been wrought by the convention or agreement of the plaintiff and the defendant, instead of by the compulsory process of the law. If this was not true, the value of the process would be
Á vendor of lands, in the absence of an agreement to the contrary, if he does not take some independent security, retains a lien for the payment of the purchase money, though he may execute an absolute conveyance to the vendee. The lien prevails against all succeeding to the estate of the vendee, other than bona fide purchasers for value without notice. It is an infirmity of title,to which the homestead exemption or estate, is by statute rendered subordinate. (Code, § 2509.) The lien is an incident to the debt contracted for the purchase money, passing to an assignee of the debt, and he may enforce it, as he could enforce a mortgage or other security taken by the assignor. — Kelly v. Payne, 18 Ala. 371; Wells v. Morrow, 38 Ala. 125 ; Griffin v. Camack, 36 Ala. 695 ; Simpson v. McCallister; 56 Ala. 228. Standing in the relation of assignee of the debt contracted for the purchase money of the land ; substituted to the place of the vendor, as the creditor of the vendee, the complainant is entitled to enforce the lien for the payment of the judgment against the defendant.
The vendors, the defendants in attachment, are obviously necessary parties. The judgment against them nor the judgment of condemnation against the defendant as garnishee, equal the balance of the unpaid purchase money. The lien of the vendors is an entirety ; it can not be enforced by piecemeal or by fragments. There are of consequence rights remaining in them which cannot be bound or affected by a decree rendered without their presence. Whether they can be properly joined as complainants, or whether for the want of identity or' community of interest they are not improperly joined, is not a question raised by the demurrers,
The decree of the city court must be reversed, and a a decree entered overruling the demurrers, and remanding the cause for further proceedings in conformity to this opinion.