Stovall v. Hamilton
| Decision Date | 16 December 1915 |
| Docket Number | 6 Div. 705 |
| Citation | 14 Ala.App. 484,71 So. 63 |
| Parties | STOVALL v. HAMILTON. |
| Court | Alabama Court of Appeals |
Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.
Action by S. Hamilton against J.P. Myers, in which, after judgment the plaintiff garnished J.M. Stovall. From the judgment against the garnishee, he appeals. Affirmed.
Ray & Cooner and Gunn & Powell, all of Jasper for appellant.
Finch & Pennington, of Jasper, for appellee.
As a general rule, the plaintiff cannot, by process of garnishment, reach and subject to the payment of his debt against the defendant any demand which the defendant could not, at the time of the service of the writ of garnishment, have recovered of the garnishee in an action ex contractu. But this rule is subject to the exception that, if the demand has been fraudulently transferred or assigned by defendant, then, notwithstanding the defendant could not himself, on account of such transfer or assignment, recover of the garnishee, yet the plaintiff could do so, because the transfer or assignment, being fraudulent, is void as to him, and, so far as his rights are concerned, the case stands the same as if there had been no transfer or assignment at all. American Trust & Savings Bank v. O'Barr, 12 Ala.App. 546, 67 So. 795, and cases cited.
In all cases, however, where there has been a transfer or assignment by the defendant of the debt once due him by the garnishee, whether that transfer or assignment is valid or fraudulent as against the plaintiff, it behooves the garnishee, if he would protect himself from the possibility of a double liability for the same debt--a liability to the transferee or assignee and a liability to the plaintiff--to set up in his answer to the writ of garnishment the fact of such transfer or assignment, or that another claims the debt, and suggest that that other be brought in and made a party to the proceedings, to contest with plaintiff the right to such debt. Code, § 4328; Fowler v. Williamson, 52 Ala. 16; Blackman & Co. v. Collier, 12 Ala.App. 568, 68 South. 519. In such case, an issue as to the fact and validity of the transfer is then made up between the plaintiff and the claimant, and, if found for the plaintiff, judgment is rendered in his favor against the garnishee, which relieves the latter of liability to the claimant; but, if the issue be found for the claimant, the garnishee is discharged, thereby relieving him of liability to the plaintiff, and leaving him liable only to the claimant. Code, § 4329. But if the garnishee admits an indebtedness to the defendant, and fails to set up that it has been transferred or assigned, that fact can avail him nothing, and the plaintiff will be entitled to a judgment against him on such admission, notwithstanding the transfer or assignment, and notwithstanding it may be valid as against the plaintiff, and notwithstanding that by reason of it the garnishee may also be liable to the transferee or assignee for the debt. Blackman & Co. v. Collier, supra. And, although the garnishee should deny in his answer any indebtedness at all to the defendant, yet if, upon contest of such answer, the plaintiff should prove that, at the time the writ of garnishment was served, a debt had been previously contracted by the garnishee with defendant, which remained unpaid at the time of the service of the writ of garnishment, the plaintiff would be entitled to a judgment against the garnishee, notwithstanding that, before the service of the writ, the defendant had transferred or assigned that indebtedness to a third person, and notwithstanding the garnishee would, on account of such transfer or assignment, be also liable to such third person. Fowler v. Williamson, supra. The reason is that, the garnishee having failed in his answer to plead or set up such transfer or assignment, it is not within the issues made by the pleadings, and proof of it cannot, therefore, profit him anything. Fowler v. Williamson, supra; Blackman & Co. v. Collier, supra. As said by Chief Justice Brickell in the case of Fowler v. Williamson, supra:
See, also, 9 Ency.Pl. & Pr. 836, and citations in note 2.
In the case at bar, it appears that the appellee, Hamilton, had recovered of the defendant, Myers, a judgment, and that thereafter he sued out a writ of garnishment on this judgment, which was executed by service upon the appellant, Stovall, as garnishee, who duly filed answer denying in general terms under oath any indebtedness to the defendant, Myers. The plaintiff, appellee (said Hamilton), contested said answer of the garnishee, alleging that it was untrue, and further alleging that said garnishee was indebted to the defendant in the sum of $1,000 as part purchase price for land sold and conveyed by defendant to the garnishee. The evidence was without dispute to the effect that the defendant, Myers, did, after the rendition of plaintiff's judgment against him, sell and convey to the garnishee, Stovall, his exempt homestead (Code, § 4160), a and for the sum of $2,000, of which $1,000 was paid in cash, and a note for the remaining $1,000 was, at the time, executed by the garnishee to the son of said defendant, Myers, with the latter's consent, and that said note had never been paid. The court, without the intervention of a jury, rendered judgment for the plaintiff against the garnishee, who insists that the court erred, because it does not appear, he contends, that he, the garnishee, was ever indebted to the defendant at all--it appearing that he paid in cash half the purchase price of the land, and that he, contemporaneously therewith, executed a note to the defendant's son, with the defendant's consent, for the other half, the execution of which note, payable to a third person, as it was, it is contended amounted to the same, in law, as the payment in cash to defendant. In other words, the contention is that the giving of the $1,000 note to defendant's son contemporaneously with the purchase from defendant of the land operates the same in law as if payment had been then made in cash to defendant of that sum, and consequently that there was never any debt from garnishee to defendant for the $1,000 now sought to be reached; hence that the garnishee pursued the correct course when, in his answer, he denied any indebtedness whatever to defendant, instead of admitting, as appellee contends he should have done, under the authority of Fowler v. Williamson, supra, an indebtedness at one time, and alleging that it, still unpaid, had been transferred to another before the writ of garnishment was served.
We cannot conceive how it can be properly said that there was never any indebtedness from garnishee to defendant for the $1,000 for which garnishee made the note to defendant's son, since the very consideration of that note was the balance of the purchase money which garnishee owed defendant for his land. However short a time he may have owed it to defendant before executing the note to the son is immaterial. Suppose a note therefor had never been executed by garnishee to defendant's son; could not the defendant have recovered of the garnishee on an account, or account stated, or could the garnishee have escaped liability entirely by failing or refusing to give a note to defendant's son as was promised? A proper answer to these questions shows conclusively that for some moment of time before the note was executed to defendant's son, however brief that time, the garnishee was indebted to the defendant. The execution by him to defendant's son of a note for this indebtedness did not thereby discharge his liability therefor, but merely changed the form of his obligation and the person to whom he was liable. In other words, the transaction did not amount to a payment of the debt, but merely to a novation--the substitution of defendant's son for defendant as obligee--and amounted to the same in legal effect, so far as the questions here involved are concerned, as if the garnishee had given defendant a note for the debt and defendant had transferred that note to his son. It has been held that, in such latter case, as before seen, that the garnishee, in order to make proof of the transfer under the pleadings, must in his answer admit at one time having been indebted to defendant and allege that the indebtedness, still unpaid, had been transferred by defendant to another before the garnishment was served. Fowler v. Williamson, supra. This was not done here, and we hold, in line with the authority cited, that the court did not err in ignoring the proof of the transfer of the debt; that is, proof of the execution to defendant's son of a note for the debt due garnishee, and consequently that the court did not err in rendering judgment for plaintiff. Fowler v. Williamson, supra.
The fact, if it be a fact, that the $1,000 for which the garnishee executed to defendant's son the said note was exempt to defendant, because a...
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