Winslow v. Bracken, 57 Ala. 368

Winslow v. Bracken

57 Ala. 368 | Ala. | 1876

BRICKELL, C. J.

1. The issue which may be formed between the garnishing creditor, and the claimant of the debt, or demand, or fund sought to be subjected to the garnishment, is collateral to the suit against the debtor, and the suit by garnishment. It does not involve the regularity of the proceédings in either of those suits; and the purpose of compelling its formation and trial, is, the snmmary determination of the right of the claimant as against the garnisheeing creditor — whether his right is superior to that of the claimant. As in the analogous proceeding of the trial of the right of property, levied on by attachment, or execution, the claimant cannot inquire into, or avail himself of mere defects or irregularities in the garnishment proceeding, though , doubtless it would be permissible for him to show that it was void. It may be true that the garnishment was unauthorized — that while the appellee could under section 3078 of the Eevised Code, have prosecuted a garnishment on the judgment, in the name of the plaintiff, notwithstanding its payment by him, he cannot prosecute it in his own name; yet, suing it out in his own name, is a mere irregularity, which is waived, if not insisted on, by the defendant in the judgment, or the garnishee. The appellant as claimant of the demand, sought to be subjected by the garnishment, in obedience to a citation to him, appeared, and in writing properly verified, propounded his claim. Though the record does not disclose the issue which was formed, we must presume it was a proper issue for the determination of the right of the appellant, especially as no objection to its form or character seems to have been made in the court below.

2-3. On the trial of the issue, the appellee offered in evidence the record of the judgment rendered against him and Matthews, and offered evidence to prove its transfer to him by the attorneys of record, of the plaintiff therein. To *371the introduction of the record, the appellant objected on two grounds, which resolve themselves into an affirmation that the garnishment should have been sued out in the name of , the plaintiff, in the judgment for the use of the appellee, j .and not in the name of appellee alone. We have said if I? this be true, it is a mere irregularity, available only to the ! defendant, Matthews, or the garnishee, and not to the ap- J pellee. The objections to the validity of the transfer of the! judgment to the appellee, if the appellant could assert any, were not tenable. The statute expressly authorizes, and imposes it as a duty on the attorney of record, to assign to a surety a judgment he has paid, which is rendered against himself and principal. — R. C. § 3078. The assignment is valid and operative whether it is made by the attorney in the name of his client, or in his own name.

4. The evidence of the oral examination of the garnishee, and his admissions thereon, as to the extent of his indebtedness to the defendant, Matthews, was irrelevant to the issue. It is not possible that its introduction could have worked any injury to the appellant, and this being apparent, the error will not authorize a reversal.

5. The appellee should not have been permitted to introduce evidence that prior to the transfer under which the appellant claimed, Matthews the debtor, had transferred the claim in controversy to him. It is not intended that the proceeding which the statute authorizes to try the validity of a transfer, of a claim sought to be subjected by garnishment, shall become a mode of testing the validity or superiority of rival transfers of such claim. The right of the plaintiff is simply that of an attaching creditor, derived from the process entirely, and not from contract with the debtor. If the contesting claimant shows a transfer which prevails over the right derived from the process, he is entitled to judgment. The garnisheeing creditor, if he has a superior right by transfer from the debtor, must assert it in some appropriate mode, not by garnishment, which imports the light to the claim is in the debtor, or if he has parted with it, the transfer is inoperative as to creditors. The court was in error, in the admission of this evidence. For the same reason, the court was in error in the instruction, that if the appellee had purchased the interest or claim of the debtor, Matthews, before the transfer under which the appellant claimed, the appellant could not recover. We repeat this was an inquiry wholly foreign to the only issue the statute .authorizes — whether the issue is of law, or of fact. That *372issue, is whether the claimant has a transfer of the demand, superior to the right of the garnisheeing creditor, derived from the process.

6. The appellant, to support his claim, was bound to prove the transfer to Blackman by Matthews, and the transfer from Blackman to him. The transfer to Blackman must fiave been prior to the service of the garnishment, and founded on a valuable consideration. Or, if not founded on such a consideration, that without notice of its want of consideration, he for value accepted the transfer from Blackman. The onus of establishing these facts rested on the appellant. A transferree contesting with a garnisheeing creditor, must' establish the validity of the transfer under which he claims, its consideration, and making before service.—Camp v. Hatter, 11 Ala. 151; Scott v. Stallsworth, 12 Ala. 25. The first charge requested by the appellant was properly refused, because it would have authorized a verdict for him, though he had failed in establishing the consideration of the transfer to Blackman, or, if that was not shown, that he purchased for value in good faith from Blackman, without notice of the infirmity of his title.

The second and third charges requested were properly refused. The issue is, the validity of the transfer under which the appellant claims. The affirmative of the issue rests on the appellant. It is not permissible for him to show that the right and title to the claim, is in any other person than himself.—2 Brick Dig. 480, § 67; Lehman, Durr & Co. v. Warren & Burch, manuscript. There can be no doubt the demand now sought to be reached is subject to garnishment. — R. C. § 2947.

For the errors pointed out, let the judgment be reversed and the cause remanded.