Flash, Hartwell & Co. v. Paul, Cook & Co.

29 Ala. 141

• Court: Supreme Court of Alabama
• Decided: June 15, 1856
• Status: Published

Opinion

WALKER, J.

An original attachment was issued by the clerk of the city court of Mobile, against non-resident defendants, and was levied only by service of garnishment process on the appellants. Judgment was rendered against the defendants in attachment, and against the defendants in garnishment. The garnishees seek, by this appeal, to reverse the judgment against them. This court decided in Stevenson v. O’Hara, 27 Ala. 362, that an original attachment, issued by the clerk of the city court of Mobile, was void : and that a judgment, predicated on such attachment, was also void. That decision has been at the present term re-affirmed, in the case of Matthews, Finley &. Co v. Sands, and must now be regarded as the law. It follows that the attachment in this case, and the judgment in the attachment suit, must be held to be void for want of jurisdiction, as to the defendants in the attachment.

The garnishee cannot avail himself of any mere'irregularities in the attachment, or in the judgment against the defendant in attachment. — Parmer v. Ballard, 3 St. 326 ; Lowry v. Clements, 9 Ala. 424 ; Tubb v. Madding, Minor, 129 ; Stebbins v. Fitch, 1 Stew. 180, But it is undoubtedly the law, well settled in this State by repeated adjudications, upon unassailable principles, that there can be no valid judgment against the garnishee, where there is no judgment against the defendant in attachment. Unless the court has jurisdiction over the claim of the plaintiff against the defendant in attachment, and renders a valid judgment against the latter, he would not be bound by the judgment of the court appropriating his debt on the garnishee to the payment of the claim asserted by the plaintiff against Mm. — Stebbins v. Fitch. 1 Stew. 180 ; Leigh v. Smith, 5 Ala. 584; Blair v. Rhodes, ib. 650 ; Gaines v. Beirne & McMahan, 3 Ala. 114; Matthews, Finley & Co. v. Sands, at the present term. The judgment against the defendant in attachment was a nullity, because the court had no jurisdiction as to him; and therefore the judgment against the garnishee is irregular, and without the sanction of law.

The judgment of the city court must be reversed, and judgment here rendered discharging the garnishee, and imposing the costs of this appeal, and of the garnishment proceeding in the court below, on the appellee.