W.L. Murdock Brokerage Co. v. Collins
| Decision Date | 30 June 1905 |
| Citation | 40 So. 96,146 Ala. 604 |
| Parties | W. L. MURDOCK BROKERAGE CO. v. COLLINS. |
| Court | Alabama Supreme Court |
On Rehearing, Jan. 30, 1906.
Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.
"To be officially reported."
Action by R. E. Collins against the Pacific Selling Company, in which the W. L. Murdock Brokerage Company was garnished. From a judgment against the garnishee, it appeals. Reversed.
Cabaniss & Weakley, for appellant.
Frank S. White & Sons, for appellee.
The plaintiff, R. E. Collins, commenced a suit by attachment in the circuit court of Jefferson county against the defendant Pacific Selling Company, on the ground of the nonresidence of said company. The attachment was issued on the 15th of July 1903, and was levied on 1,062 cases of salmon as the property of the defendant in attachment. The return of the sheriff was made July 15, 1903. On the 3d day of March, 1904, the plaintiff filed his complaint, and on the following day namely, the 4th day of March, 1904, judgment was rendered in favor of the plaintiff, against the defendant on appearance of the parties, as shown by the minute entry, for the sum of $1,950. In the judgment entry 62 cases of the salmon levied on were condemned to sale; the other 1,000 cases having been claimed by a third party.
On the same day that the judgment was rendered an alias writ of attachment was issued in the usual form. The alias writ was executed on the 3d day of March, 1904, by the sheriff summoning the W. L. Murdock Brokerage Company and others as garnishees of the defendant in attachment. On the 1st day of April, 1904, the W. L. Murdock Brokerage Company answered that it was not indebted to the defendant, that it will not be liable to defendant for the delivery of personal property or for the payment of money which may be discharged by the delivery of personal property, or which is payable in personal property, but that it had in its possession or under its control, 85 cases of canned salmon belonging to defendant. The answer was subsequently amended by adding that the garnishee held said salmon subject to delivery to said defendant at any time from the date of the answer, and that said salmon were of the value of $4 per case. On the 11th day of June, 1904, the court rendered judgment against the garnishee, requiring it to deliver the 85 cases of salmon to the sheriff of Jefferson county on or before the 14th day of June, 1904, and that in default of delivery to the sheriff the garnishee should pay the plaintiff the value of the salmon, to wit, $340. It is manifest that in entering the judgment the court was endeavoring to conform to section 2192 of the Code of 1896, and in doing so we think the court fell into an error.
That section is applicable only when there is a liability on the part of the garnishee to the defendant for the delivery of personal property; for instance, a contract by which the garnishee has promised to deliver to the defendant personal property in discharge of the contract, or where the garnishee is liable to the defendant for the payment of money which the contract creating the liability stipulates may be discharged by the delivery of personal property. The garnishee's answer shows no liability of the kind mentioned in either category. So far as the answer goes, the title to the salmon was never in the garnishee, and it never asserted any title to the salmon. On the contrary, the answer expressly alleges that the 85 cases of salmon belonged to the defendant in attachment. In this state of the case, we think the answer of the...
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