Calhoun v. Whittle

56 Ala. 138

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

BRICKELL, C. J.

Conceding that the garnishment is operative only to reach a debt owing or due from the garnishee individually, and not a debt or demand chargeable against him in his capacity of administrator with the will annexed of Patrick Calhoun, the first question is, the legal effect of the decree of the Court of Chancery rendered against him, in favor of Mrs. Renfroe, the judgment debtor. "We think it apparent, that the decree was for the recovery of the bequests to Mrs. Renfroe, contained in the will of Patrick Calhoun. On the rendition of the decree, the garnishee became the personal, individual debtor of Mrs. Renfroe. The decree conclusively adjudged, that he had assets sufficient for its satisfaction. The bequests were ascertained; the right of the legatee, and the liability of the garnishee, determined. Until such ascertainment, the bequests were not debts — they were uncertain, unascertained sums, dependent in amount and payment on the quantity of the assets, the debts of the testator, and other primary charges. They were not recoverable at law, but were exclusively of cognizance and enforcement in the Court of Probate, or the Court of Chancery. When either of these tribunals ascertains and decrees them against the personal representative, their character is changed. They become debts due from him, on which appropriate actions at law will lie against him and his sureties. The judgment or decree against him importing, as it does conclusively, that he had assets for their satisfaction, non-payment is a breach of his official bond. — Perkins v. Moore, 16 Ala. 9; Kyle v. Mays, 22 Ala. 692; Holley v. Acre, 23 Ala. 603. If he should die, and his estate prove insolvent, the decree would be a debt chargeable on the estate, equally with a bond executed by him, or a judgment founded on a contract made by him. The proper execution on the decree against him would be cfe bonis propriis, not de bonis testaloris. The direction of the decree, that the execution should be levied of the goods and chattels of the testator, if not a mere clerical misprision, amendable as matter of course, can not change the character and legal effect of the decree, when it becomes, as in this case, the foundation of a distinct suit, in another tribunal. It may control the process issuing out of the Court of Chancery, but it can not impair the operation of the decree. That remains a conclusive adjudication, converting the bequests into a debt, the legatee into a creditor, and the personal representative, from a trustee, into a debtor. On this debt, garnishment against the administrator individually, not in his representative capacity, was proper, as a suit against him by the legatee could have been supported only in that form.

2. It is certainly true, the interest of the judgment debtor in the bequests was only 'for life, and that the Court of Chancery erred in decreeing that the appellant should pay them to her, until she had given suitable bond for the repayment to the remainder-men on her death. — Mason v. Pate, 34 Ala. 379. The appellant submitted to the decree, and has taken no step to correct or reverse it. The life-tenant could enforce its payment, and he can not collaterally impeach it- If the interests of the remainder-men are in jeopardy, a court of equity has ample jurisdiction to protect them.

3. It is not now an open question in this court, that a debt due by judgment may be subjected by garnishment, issuing from the court in which the judgment was rendered. — Skipper v. Foster, 29 Ala. 330; 5 Ala. 567; 10 Ala. 298. Whether, when the judgment is rendered in one court, garnishment will lie from another court to subject it, was not settled by judicial decision. In Hill v. Lacy, 3 Ala. 104, it was held, that a debt in suit could be reached, by garnishment, issuing out of the same court. It was said, all debts were the subject of garnishment, and the commencement of suit worked no change in the character of the demand; and as both suits were in the same court, no conflict of jurisdiction could possibly arise. In Bingham v. Smith, 5 Ala. 651, it was held, if tbe debt was controverted, and was in suit in one county, it could not be reached by garnishment issuing from the court of another county. Subsequently, the present statute was enacted, by which debts in suit, in any of the courts of this State, are made the subject of garnishment; and the vexation of the garnishee, or a conflict of jurisdiction, is avoided, by requiring the court in which the suit on the debt is pending to stay execution until the termination of the garnishment suit, and then to make the order which may be appropriate. — R. C. § 2951. The equity, if not the terms of the statute, we think, extends to judgments. The policy of the statutes providing the remedy by garnishment is the subjection of the effects, the choses in action of a debtor, not liable to execution, to the payment of his debts, unless expressly exempt by the terms of the statute, or the constitution, or from public policy. Debts originating in contract, whether due or to become due in the future, whether due or owing individually or in a representative capacity, as by an executor or administrator, or a trustee; legacies or distributive shares; money in the hands of officers of court, presumed to be in the custody of the law, or in the hands of attorneys, are, like debts in suit, subject to the process. A judgment is a debt ascertained, and remains a contract, within the protective power of the constitution of the United States, inhibiting the passage of laws impairing its obligation.— Weaver v. Lapsley, 43 Ala. 224. An action of debt will lie on it, though an execution may issue thereon. — Kingsland v. Forrest, 18 Ala. 519.

There is nothing in the character of the judgment, to relieve it from liability to garnishment. The objection urged is the unseemly conflicts of jurisdiction, which may arise, and the inconvenience and embarrassment of judgment debtors and creditors, which may be imposed. The same conflicts, and like inconvenience and embarrassment, if not more serious, may be apprehended, by the garnishment of a debt in suit. Yet, when the two courts are members of the judicial department of the same government, and each subordinate to the control and supervision of the same superior tribunal, are not these apprehensions rather imaginary than real? Each court is bound to respect the process, judgments, or decrees of the other; and each, while administering justice to the suitors before it, must take care not to infringe on the jurisdiction of the other, or the rights of suitors before it; not on any principle of comity, but on principles of law they can be compelled to observe. Each has an inherent power to prevent the abuse of its process; and, observing the course pointed out in the statute, in reference to the garnishment of debts in suit, can save the judgment debtor from vexation, and preserve the rights of the creditor; and, so far from a conflict of jurisdiction arising, there will be harmony of action, and neither tribunal will invade the sphere of the other., It is possible, occasional individual injury may be suffered, because of the garnishment in the one court of the judgments rendered in another; but the preservation of the general policy of the statutes, and the protection of the interests of the community at large, are of paramount importance to the prevention of occasional inconvenience or hardship to individuals. Many decisions, of high authority, can be found, which assert the exemption of judgments in one court, from garnishments in another. Without departing from the spirit and policy of our own statutes, we can not follow them,

4. A voluntary payment of the debt by the garnishee, after the service of the garnishment, will not defeat it. Its service creates a lien on the debt, which continues until it is dissolved by the discharge of the garnishee, under the order of the court from which it issues. The payment by the appellant of the execution, after service of the garnishment, was voluntary. He could have had the execution stayed until the termination of the garnishment suit, by an application to the chancellor. — Skipper v. Foster, supra. The appellee had pursued the only remedy he could pursue — the garnishment — to stay the enforcement of the execution. It was at his own peril the appellant made the payment; and if he sustains loss, It results from his own neglect.

We find no error in the record, and the judgment must be affirmed.