Feore v. Mississippi Transp. Co.
| Decision Date | 03 June 1909 |
| Citation | 161 Ala. 567,49 So. 871 |
| Parties | FEORE v. MISSISSIPPI TRANSP. CO. (BERG, GARNISHEE. |
| Court | Alabama Supreme Court |
Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.
Action by James J. Feore against the Mississippi Transportation Company, as defendant, and A. Berg, as garnishee. From a judgment in favor of the garnishee, plaintiff appeals. Affirmed.
Pillans Hanaw & Pillans, for appellant Gregory L. & H. T. Smith, for appellee.
Feore was a creditor, it appears, of the Mississippi Transportation Company. That company was the charterer of the steamship Beta, of which vessel A. Berg was the master. The vessel was owned by Henson & Closter, of Germany. Under the terms of the charter party the charterer was entitled, after allowing all proper credits, to about $1,000. Feore caused writ of garnishment to be served on Berg, as master of the ship, in an effort to enforce payment of his demand against the Mississippi Transportation Company. Berg answered, in a form agreeable to the plaintiff, that he was without contractual relation, present or prospective, with the defendant in the writ of garnishment; that Henson & Closter, the owners of the vessel, had arranged with the Leinkauf Banking Company, of Mobile, a credit, in his favor as master, of not exceeding $5,000. The nature and effect of this credit was the subject of thorough investigation on the hearing. From the answer, on deposition, in that connection, we conclude that the arrangement made was that the master's drafts or checks would be honored by the Leinkauf Banking Company within the limit stated. It is settled with us, and not controverted by this appellant, that garnishment is serviceable in this state to subject a money demand to the satisfaction of a plaintiff's demand only when the defendant in garnishment could maintain debt or indebitatus assumpsit against the garnishee to enforce his demand. Roman v. Dimmick, 123 Ala. 366, 375, 26 So. 214; Cunningham v. Baker, 104 Ala. 160, 168, 16 So. 68 53 Am. St. Rep. 27. Could the defendant here, the transportation company, maintain that form of action against the master of the vessel?
The theory upon which the appellant relies is that the debtors (Henson & Closter) of the transportation company had placed under the control or in the hands of the master of the Beta funds with which to satisfy the demand of the defendant against them. The facts, as we have indicated, were, though reviewed with the utmost favor to the appellant, that instead of having funds of Henson & Closter in his hands or under his control, the master had only a power of demand for funds upon the Leinkauf Banking Company. In other words, the master's status was that of one vested with the power to demand and receive funds from a third person (the banking company); such funds being (let us assume) on...
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