Atnip v. Gilbert

1 Thompson 181, 1 Shan. Cas. 119

Opinion

Wright J.,

delivered the opinion of the Court :

Gilbert had a judgment against Atnip in the Circuit Court of DeKalb County, and the sheriff who had the execution being unable to find any property of Atnip’s to satisfy the same, made return to that effect, and summoned Thomas Pack to answer upon oath what he was indebted to Atnip.

Pack, in answer, stated that be was indebted to Atnip as tbe stayor of one Milton wbo was dead, in a judgment before a justice of tbe peace, against tbe latter, in favor of Atnip to an amount greater than tbe debt to Gilbert; that this judgment remained unpaid, and bad never been revived against tbe personal representatives of Milton, be in fact having none. Upon these facts, tbe Circuit Court gave judgment in favor of Gilbert against Pack, tbe garnishee, from which Atnip appealed to this court.

It is now insisted that tbe judgment of tbe circuit court is erroneous, because tbe estate of Milton should have been first exhausted, before Pack, tbe stayor, was called on to pay tbe judgment, that until this was done be was not tbe debtor of Atnip in tbe sense contemplated by tbe garnishment laws.

For this argument there are two answers. First. At-nip here, has no right of appeal. He does not complain of tbe judgment and execution against him, but only that Pack, tbe garnishee, is aggrieved because tbe estate of bis principal is not exhausted. But it does not lie with him to interpose for tbe benefit of Pack, who is content with tbe judgment upon tbe garnishment. Baldwin & Campbel, vs. Merrill, 8 Hump. 132.

Footnotes

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(1)

That provision in the Code at sec. 8492, which gives the appeal in all garnishment cases, at the instance of the plaintiff, the defendant, or the garnishee, and which is but the re-enactment of the previous law on the subject; — ■ only contemplates the appeal by the parties respectively, who may be aggrieved. (2)

Second. Sections 3028 and 3029, of the Code making it the duty of an officer having the collection of a judgment against a principal and his surety, or stayor to exhaust the property of the principal, both real and personal, before proceeding to sell the surety, or stayor, can have no application where from the death of the principal, or from other ■cause, his estate has ceased to be subject to the execution in the hands of the officer.

Wc need only refer to Cheatham vs. Brien, 3 Head. 252 ; decided at the present term, and Atkinson & Cobb vs. Rhea, 7 Hump. 59. (3)

Appeal dismissed.

The language of the court in Baldwin & Campbell v. Merrill is as follow “We are also of opinion that the defendant may properly apply to have the execution against the garnishee superseded Or quashed. He is the only person to be injured; the garnishee had no interest in the matter, as the judgment would be a sufficient protection for him.”

At first blush these cases would seem to be in conflict; but it must be remembered that in the case in 8 Humphreys, Merrill sought by certiorari and supersedeas in the return of the obsolete writ of audita querela to have an execution against the garnishee his debtor, superseded and quashed, on the ground that the original judgment against him had been satisfied. He complained of ¡an injury about to be done him in the seizing of Ms debt in the bands of bis debtor to satisfy an other debt already paid; while Atnip in the case above reported complains only of the supposed wrong against the garnishee, who is content This' distinction brings the cases into harmony.

A garnishee can only be charged on his own answer; it is conclusive for or against himself. Moses v. McMullen, 4 Cold. 242, 244 ; Turner v. Oglesby, 9 Yerg. 412; Moore v. Green, 4 Humph. 299; Huff v. Mills, 7 Yerg. 42, 43; Foster v. Saffell; 1 Swan, 90, 91; Brown v. The State, 7 Humph. 112 ; Drane v. McGavack, 7 Humph. 132; Conner v. Allen, 3 Head. 418, 424.

Unless the sum in controversy is less than fifty dollars. Code, 3103.

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And so, while the garnishee is entitled to all the legal defences he could have against the suit of his creditor, (Hinkle v. Currin, 2 Humph. 137;) yet he cannot set up by way of defence matters which effect only the defendant debtor. Coleson v. Blanton, 3 Hayw., 153, 156; Cheatham v. Trotter, Peck, 198.

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See also Cabiness v. Garrett, 1 Yerg. 491.