Donald v. Nelson

• Decision Date: 15 December 1891
• Citation: 10 So. 317,95 Ala. 111
• Parties: DONALD ET AL. v. NELSON ET AL.
• Court: Alabama Supreme Court

10 So. 317

95 Ala. 111

DONALD ET AL. v. NELSON ET AL.

Supreme Court of Alabama

December 15, 1891

Appeal from circuit court, Mobile county; W. E. CLARKE, Judge.

Action in attachment by Donald Bros. & Co. against James Nelson &amp Sons, defendants, and W. H. Lienkauff & Sons, garnishees. From an order sustaining the garnishees' pleas in abatement, and overruling plaintiffs' demurrer to such pleas, plaintiffs appeal. Affirmed.

Faith & Ervine, for appellants.

Pillans, Torrey & Hanaw, for appellees.

CLOPTON J.

Appellants having made before the clerk of the circuit court the requisite affidavit and bond to obtain an attachment against the estate of James Nelson & Sons, the clerk, without issuing an attachment writ, issued a garnishment process, directed to and commanding the sheriff to summon W. H. Lienkauff & Sons as garnishees. The process having been served, the garnishees appeared and filed pleas in abatement, setting up that no attachment was issued, and that the sheriff was without authority to serve the summons of garnishment. Plaintiffs first moved to strike out the pleas, and then demurred. Both the motion and the demurrer were overruled. On a subsequent day the garnishees were, on their motion, discharged upon their pleas in abatement, no replication thereto having been filed, nor issue taken thereon, within the time required by the rules and practice of the court. During the hearing of this motion, plaintiffs asked leave to file a replication, which was refused. The exceptions to these several rulings constitute the first four assignments of error.

Section 2945 of the Code provides that attachments may be levied on the real estate or personal property of the defendant, or may be executed by summoning any person indebted to him, or liable to him on a contract of either of the kinds specified, or having in his possession or under his control any money or effects belonging to the defendant. Under the statute, garnishment is a mode of levying an original attachment. The sheriff cannot make a valid levy on real or personal property, or by garnishment, without having in his possession the attachment authorizing it. His power and duty arise when the attachment is placed in his hands. Until then he has no authority to act, and becomes a trespasser if he seizes the property of the defendant. The issue of the attachment and possession by the sheriff are essential prerequisites to a valid execution by service of garnishment. Wales v. Clark, 43 Conn. 183; Drake, Attachm. § 183 a. The attachment must be levied by the officer to whom the writ is directed; and, when executed by garnishment, the officer levying must officially sign, as well as serve, the summons requiring the garnishee to appear within the time, and answer as to the matters prescribed in section 2946, and indorse such service on the attachment writ. Garnishment is a statutory proceeding, and can be issued only in the cases and by the officer authorized by statute. The clerk has authority to issue a garnishment when in aid of a pending suit, or on a judgment, or in cases in which the process is merely auxiliary; but such authority is not conferred when it is resorted to as a mode of levying an original attachment. The clerk is as much without authority to direct or command the sheriff to execute the attachment by summoning any particular person as garnishee as he is to direct or command on what property the sheriff shall levy. His authority ceases with the issue of the attachment. He is not authorized to do any act thereafter in reference to, or involving, the levy. It follows that the garnishment process issued by the clerk, and the service thereof, are nullities.

A garnishee cannot avail himself of irregularities in the attachment proceedings; but when the writ is void, or the garnishment process is issued by an officer without authority, or the service is invalid because of the non-existence of an attachment, the objection is available to the garnishee, and any available defects in the process may be taken advantage of by plea in abatement. Flash v. Paul, 29 Ala. 141; Curry v. Woodward, 50 Ala. 258. Leave to file a replication to a plea in abatement, after the expiration of the time allowed by the rules of practice, rests in the discretion of the court, the exercise of which is not revisable.

During the foregoing...