Minge v. First National Bank

68 So. 141, 191 Ala. 271, 1915 Ala. LEXIS 454

Opinion

PER CURIAM.

As the debt from the defendant to the garnishee, the First National Bank, was not due at the time of answering the garnishment, it had no legal set-off available in a court of law (First Nat’l Bank v. Minge, 186 Ala. 405, 64 South. 957), yet equity will enforce the relief under an appropriate bill and will award an equitable set-off by enjoining the enforcement of the judgment, the defendant being now insolvent (Wood v. Steele, 65 Ala. 436; Farris v. Houston, 78 Ala. 250). It may be that a lien attached under the garnishment proceedings in the law court, but said lien is subordinate to and does not affect the complainant’s equitable set-off.- Indeed the equity of the bill in the case of Wood v. Steele, supra,, was to enforce an equitable set-off and enjoin the collection of a judgment at law upon which an execution had been issued and levied upon the land and the same had been sold. The very equity of the bill in this case is that the complainant has an equitable set-off which was not available in the proceeding at law, and which is superior to the respondent’s judgment in the law court.

The decree of the chancery court is affirmed.

Affirmed.

Anderson, C. J., and McClellan, Sayre, and de Graffenried, JJ., concur.