Payne v. Mayor of Mobile

4 Ala. 333

• Court: Supreme Court of Alabama
• Decided: June 15, 1842
• Status: Published

Opinion

ORMOND, J.

Neither of the objections taken to this judgment can avail. If no debt existed at the time this garnishment was sued out, the interest of which could be transferred by Bolling to another, the objection would be equally fatal to the garnishment, which will not lie upon a possibility or contingency. but only upon a debt then due, or to fall due. [Planters’ and Merchants’ Bank v. Andrews, 8 Porter, 404.] The contract of the corporation with Bolling, was to pay him five hundred dollars for his assessment of the taxable property of a portion of the city, and although performance of the service was a condition precedent to his right to the money, we. cannot perceive how this can affect his right to transfer his interest before the services were rendered.

It is quite unimportant whether the Mayor had the power of binding the corporation,by accepting the order,or not, as it is very clear that his refusal to accept would not have affected the right of Gwathmey to the money, which did not depend on any act of the corporation, and was only necessary to enable him to sue in his own name.

Upon this garnishment the only qustion was, whether Bol-ling had any right to this money when the garnishment was sued out, which, as the answer of the corporation disclosed, was claimed by another, he should have been cited under the recent statute of the State, passed in 1840, to contest his right with the plaintiff in attachment.

Let the judgment be affirmed.