BRICKELL, C. J.
The causes of demurrer directed to the validity of the judgment against the defendants in attachment, were not well taken. Mere defects or irregularities in the process or in the j udgment against the defendant in attachment, are not available to a garnishee. 1 Brick, Dig. 182, § 405, It is only when the process is void, incapable of supporting, a judgment, or the judgment is void for a want of jurisdiction apparent on the face of the record, and of consequence not affording the garnishee protection against the claim or demand of the defendant in attachment, if he yields obedience to the separate judgment against himself, that he can be heard to impeach the one or the other. 1 Brick. Dig., 182, § 406. The judgment against the defendants in attachment would have been more regular and free from error, if it had recited that notice of the attachment and levy had been given in the mode and for tiro length of time prescribed by the statute. (Code, § 2936.1 On error, the irregularity would not have been cured by the general recital in the judgment entry that legal notice by publication had been proved, and the judgment would have been reversed. — Dow v. Whitman, 36 Ala. 604; Brinsfield v. Austin, 39 Ala. 227. The coixrt rendering the judgment is a court of general jurisdiction , and error or irregularities in the course of its proceedings do not affect the validity of its judgments when collaterally drawir in qxxestion; nor does the silence of its records create a presumption of a want of jurisdiction. Besides, if the defendants in aitachment are properly joined as complainants, affirming or acquiescing in the judgment, the defendant, the garnishee, can not for them dispute its validity, or question its sufficiency for his protection, the only matter in which he has an interest.
A garnishment is essentially a statutory remedy; [393]*393though derived it is said from the customs of London, it is not a common law remedy, and would not in the absence of statutes authorizing it, exist here. It is not like summary statutory proceedings, in derogation of the course of the common law, subjected to a strict construction ; it is a species of attachment, and falls within the influence of the statutory injunction, that ‘ ‘the attachment law must be liberally construed to advance the manifest intent of the law.” (Code, § 2998.) Originally, it pertained exclusively to courts of law, until authority to employ it as as a remedy to obtain satisfaction of decrees for the payment of money, was extended to the courts of probate and the courts of chancery. When employed by courts of law, it is intended to reach choses in action not capable of seizure through execution or attachment, or to compel the discovery of effects capable of seizure, in the possession of a third person. Fraud upon creditors of the defendant in attachment or judgment, not intervening, or being imputed, it operates only on the legal rights of the defendant; such rights as by an action at law, he could in his own name enforce. It is not intended, and it is not more adapted than any other legal remedy to reach, subject, or enforce equitable rights ; rights the cognizance and enforcement of which lie within the province of a court of equity. As often described in the course of judicial decisions, especially when the purpose is to reach and subject choses in action, it is the institution of a suit by a creditor against the debtor of his debtor. 1 Brick Dig. 171, § 276. If the plaintiff is successful in the prosecution of tlio remedy, the judgment whether it be rendered on the answer of the garnishee admitting an indebtedness, or on the contest of an answer denying an indebtedness, or on the contest of the right of a third person to the indebtedness, is rendered for and in the name of the plaintiff, for an amount not exceeding his judgment against the defendant. (Code, §§ 2976, 2983, 2985.) So long as unreversed, the judgment which is aptly termed a judgment of condemnation, is conclusive as between the garnishee and the defendant. (Code, § 2993.)
The service of a garnishment creates a- lien on the debt or demand due or owing from the garnishee, a lien which is inchoate, but is incapable of impairment by [394]*394airy arrangement or transaction between the defendant and the garnishee, or by any act of either. The rendition of judgment of condemnation perfects the lien, and substitutes the plaintiff as a judgment creditor, to the place and stead of the original creditor, the defendant in judgment or attachment. In Cottrell v. Varnum, 5 Ala. 231, it was said by Collier, C. J., “By the service of a garnishment on a debtor of the defendant, the plaintiff acquired a lien on the debt for the satisfaction of his demand, which cannot be divested by any arrangement between the defendant and garnishee; and the judgment only consummates the legal transfer of so much of the garnishee’s indebtedness as is condemned thereby to the payment of the plaintiff’s demand.” In Huie v. Garrett, 10 Ala. 299, Goldthwaite, J., speaking of a judgment against a garnishee, said : “By the judgment rendered against Garrett, as the debtor of Huie, the right to receive the debt, was transferred to Dewey, the creditor, and it became quasi his debt.” In Strong v. Smith, 1 Metc. 476, Ch. J. Shaw said: “The trustee process,” (the name by which the process corresponding toa garnishment, is known íd Massachusetts,) “operates as a species of compulsory statute assignment, bv which a creditor may obtain that by operation of law, which his debtor might voluntarily assign to him in payment of his debt.” In Campbell v. Nesbitt, 7 Nebraska, 300, it was decided that an attachment of a debt secured by mortgage, gave the creditor the same right to enforce the mortgage for the payment of the debt, which the judgment debtor had previously.
The purpose of a garnishment is to compel the garnishee to pay to the plaintiff the debt he owed the defendant ; and the operation and effect of the judgment of condemnation, is the substitution of the plaintiff as the creditor, in the stead and place of the defendant. Payment to him extinguishes the debt, as fully as payment to the defendant would have extinguished it, if made before the issue and notice of the garnishment. The change of creditors works no change in the obligation or incidents of the debt. These follow the debt, as they would follow, if the change had been wrought by the convention or agreement of the plaintiff and the defendant, instead of by the compulsory process of the law. If this was not true, the value of the process would be [395]*395lessened; it would be circumscribed and narrowed for the benefit of the garnishee only, to the prejudice of the original and of.the substituted creditor. The debt, the foundation of the judgment against the garnishee, was a legal demand; it was a promissory note payable to the defendants in attachment. But it is quite an error to suppose that where a creditor succeeds in condemning legal assets, he is confined to legal remedies to render them available; he may pursue whatever of equitable remedies, any judgment creditor may pursue; and if there is an equity inhering to the assets, that equity he may enforce.
Á vendor of lands, in the absence of an agreement to the contrary, if he does not take some independent security, retains a lien for the payment of the purchase money, though he may execute an absolute conveyance to the vendee. The lien prevails against all succeeding to the estate of the vendee, other than bona fide purchasers for value without notice.
Free access — add to your briefcase to read the full text and ask questions with AI
BRICKELL, C. J.
The causes of demurrer directed to the validity of the judgment against the defendants in attachment, were not well taken. Mere defects or irregularities in the process or in the j udgment against the defendant in attachment, are not available to a garnishee. 1 Brick, Dig. 182, § 405, It is only when the process is void, incapable of supporting, a judgment, or the judgment is void for a want of jurisdiction apparent on the face of the record, and of consequence not affording the garnishee protection against the claim or demand of the defendant in attachment, if he yields obedience to the separate judgment against himself, that he can be heard to impeach the one or the other. 1 Brick. Dig., 182, § 406. The judgment against the defendants in attachment would have been more regular and free from error, if it had recited that notice of the attachment and levy had been given in the mode and for tiro length of time prescribed by the statute. (Code, § 2936.1 On error, the irregularity would not have been cured by the general recital in the judgment entry that legal notice by publication had been proved, and the judgment would have been reversed. — Dow v. Whitman, 36 Ala. 604; Brinsfield v. Austin, 39 Ala. 227. The coixrt rendering the judgment is a court of general jurisdiction , and error or irregularities in the course of its proceedings do not affect the validity of its judgments when collaterally drawir in qxxestion; nor does the silence of its records create a presumption of a want of jurisdiction. Besides, if the defendants in aitachment are properly joined as complainants, affirming or acquiescing in the judgment, the defendant, the garnishee, can not for them dispute its validity, or question its sufficiency for his protection, the only matter in which he has an interest.
A garnishment is essentially a statutory remedy; [393]*393though derived it is said from the customs of London, it is not a common law remedy, and would not in the absence of statutes authorizing it, exist here. It is not like summary statutory proceedings, in derogation of the course of the common law, subjected to a strict construction ; it is a species of attachment, and falls within the influence of the statutory injunction, that ‘ ‘the attachment law must be liberally construed to advance the manifest intent of the law.” (Code, § 2998.) Originally, it pertained exclusively to courts of law, until authority to employ it as as a remedy to obtain satisfaction of decrees for the payment of money, was extended to the courts of probate and the courts of chancery. When employed by courts of law, it is intended to reach choses in action not capable of seizure through execution or attachment, or to compel the discovery of effects capable of seizure, in the possession of a third person. Fraud upon creditors of the defendant in attachment or judgment, not intervening, or being imputed, it operates only on the legal rights of the defendant; such rights as by an action at law, he could in his own name enforce. It is not intended, and it is not more adapted than any other legal remedy to reach, subject, or enforce equitable rights ; rights the cognizance and enforcement of which lie within the province of a court of equity. As often described in the course of judicial decisions, especially when the purpose is to reach and subject choses in action, it is the institution of a suit by a creditor against the debtor of his debtor. 1 Brick Dig. 171, § 276. If the plaintiff is successful in the prosecution of tlio remedy, the judgment whether it be rendered on the answer of the garnishee admitting an indebtedness, or on the contest of an answer denying an indebtedness, or on the contest of the right of a third person to the indebtedness, is rendered for and in the name of the plaintiff, for an amount not exceeding his judgment against the defendant. (Code, §§ 2976, 2983, 2985.) So long as unreversed, the judgment which is aptly termed a judgment of condemnation, is conclusive as between the garnishee and the defendant. (Code, § 2993.)
The service of a garnishment creates a- lien on the debt or demand due or owing from the garnishee, a lien which is inchoate, but is incapable of impairment by [394]*394airy arrangement or transaction between the defendant and the garnishee, or by any act of either. The rendition of judgment of condemnation perfects the lien, and substitutes the plaintiff as a judgment creditor, to the place and stead of the original creditor, the defendant in judgment or attachment. In Cottrell v. Varnum, 5 Ala. 231, it was said by Collier, C. J., “By the service of a garnishment on a debtor of the defendant, the plaintiff acquired a lien on the debt for the satisfaction of his demand, which cannot be divested by any arrangement between the defendant and garnishee; and the judgment only consummates the legal transfer of so much of the garnishee’s indebtedness as is condemned thereby to the payment of the plaintiff’s demand.” In Huie v. Garrett, 10 Ala. 299, Goldthwaite, J., speaking of a judgment against a garnishee, said : “By the judgment rendered against Garrett, as the debtor of Huie, the right to receive the debt, was transferred to Dewey, the creditor, and it became quasi his debt.” In Strong v. Smith, 1 Metc. 476, Ch. J. Shaw said: “The trustee process,” (the name by which the process corresponding toa garnishment, is known íd Massachusetts,) “operates as a species of compulsory statute assignment, bv which a creditor may obtain that by operation of law, which his debtor might voluntarily assign to him in payment of his debt.” In Campbell v. Nesbitt, 7 Nebraska, 300, it was decided that an attachment of a debt secured by mortgage, gave the creditor the same right to enforce the mortgage for the payment of the debt, which the judgment debtor had previously.
The purpose of a garnishment is to compel the garnishee to pay to the plaintiff the debt he owed the defendant ; and the operation and effect of the judgment of condemnation, is the substitution of the plaintiff as the creditor, in the stead and place of the defendant. Payment to him extinguishes the debt, as fully as payment to the defendant would have extinguished it, if made before the issue and notice of the garnishment. The change of creditors works no change in the obligation or incidents of the debt. These follow the debt, as they would follow, if the change had been wrought by the convention or agreement of the plaintiff and the defendant, instead of by the compulsory process of the law. If this was not true, the value of the process would be [395]*395lessened; it would be circumscribed and narrowed for the benefit of the garnishee only, to the prejudice of the original and of.the substituted creditor. The debt, the foundation of the judgment against the garnishee, was a legal demand; it was a promissory note payable to the defendants in attachment. But it is quite an error to suppose that where a creditor succeeds in condemning legal assets, he is confined to legal remedies to render them available; he may pursue whatever of equitable remedies, any judgment creditor may pursue; and if there is an equity inhering to the assets, that equity he may enforce.
Á vendor of lands, in the absence of an agreement to the contrary, if he does not take some independent security, retains a lien for the payment of the purchase money, though he may execute an absolute conveyance to the vendee. The lien prevails against all succeeding to the estate of the vendee, other than bona fide purchasers for value without notice. It is an infirmity of title,to which the homestead exemption or estate, is by statute rendered subordinate. (Code, § 2509.) The lien is an incident to the debt contracted for the purchase money, passing to an assignee of the debt, and he may enforce it, as he could enforce a mortgage or other security taken by the assignor. — Kelly v. Payne, 18 Ala. 371; Wells v. Morrow, 38 Ala. 125 ; Griffin v. Camack, 36 Ala. 695 ; Simpson v. McCallister; 56 Ala. 228. Standing in the relation of assignee of the debt contracted for the purchase money of the land ; substituted to the place of the vendor, as the creditor of the vendee, the complainant is entitled to enforce the lien for the payment of the judgment against the defendant.
The vendors, the defendants in attachment, are obviously necessary parties. The judgment against them nor the judgment of condemnation against the defendant as garnishee, equal the balance of the unpaid purchase money. The lien of the vendors is an entirety ; it can not be enforced by piecemeal or by fragments. There are of consequence rights remaining in them which cannot be bound or affected by a decree rendered without their presence. Whether they can be properly joined as complainants, or whether for the want of identity or' community of interest they are not improperly joined, is not a question raised by the demurrers, [396]*396but it is a question which should be carefully considered in the future progress of the cause.
The decree of the city court must be reversed, and a a decree entered overruling the demurrers, and remanding the cause for further proceedings in conformity to this opinion.