Lundie v. Bradford

1. A garnishee answered, in writing, that the defendant in attachment, during the year previous to the service of the garnishment, had furnished him with $150 in money, and had given him his note for $51; that in consideration of said money and note, he agreed to enter a tract of land at the land-office for said defendant, and subsequently filed a land-warrant in said office to he located for said defendant; that one of the officers doubted whether the location could bo made in the form desired, and this caused a delay in the locar tion ; and that after the service of the garnishment he made no further effort to have the location made: líele!, that the plaintiff in attachment was not entitled to a judgment against the garnishee on this answer.

Appeal from the Circuit Court of Talladega. Tried before the Hon. John Gill Shorter. ■The appellant, having obtained a judgment against James A. Fowler, summoned the appellee by process of garnishment as Fowler’s debtor; and the garnishee answered in writing as follows: “ Some time in the early part of the year -1851, James A. Fowler, by himself, and through Alexander White, Esq., furnished me with one hundred and fifty dollars in money, or thereabouts, and gave me (his note for ?) fifty-one dollars. In consideration of said money and note, executed to me on the 24th February, 1851, I agreed to enter in the land-office at Lebanon, Ala., for the said Fowler, one quarter? section of land, and subsequently filed in said land-office a land-warrant calling for one hundred and sixty acres to be located for said Fowler ; but one of the officers having doubts whether the warrant could be located in the shape desired by Fowler, the location was delayed for a time, and since I was garnisheed by Lundie I have made no efforts to locate the same. In addition to the fifty-one dollar note on said Fowler, he owes Bradford & Lawler thirty dollars, with interest since January, 1839, and some cost on the same. I know of no other effects of said Fowler, nor do I know of any one who owes him anything.” On this answer the court discharged the garnishee, and its judgment is now assigned for error. On the state of facts disclosed by the answer, the plaintiff was entitled to a judgment against the garnishee. There is no question that Bradford had two hundred-dollars in money belonging to Fowler at the time the garnishment was served, and that Fowler could, at any time before he entered the land, have notified him not to enter it: and on such notice being given, he could have sued Bradford for the money, if the latter failed to re-pay'it. What Fowler could do of his own volition, the law empowers his creditor to do by service of the garnishment. A proceeding by garnishment is the institution of a suit by the attaching creditor, and is governed by the general rules applicable to other suits. It is a legal remedy, and is to be so treated. — 5 Ala. 442 ; 8 ib. 516. There is no ground for saying that this is a mere agreement to enter the land. The answer does not bear such a construction. It shows that Fowler furnished the money with which Bradford was to enter the land. It does not show a valid and binding contract, by which Bradford acquired a right or title to the money, and Fowler only the benefit of a contract with him. As the land is not yet entered, whose is the money ? is it not Fowler’s, unless the garnishment holds it ? — Mann v. Buford, 3 Ala. 312. contended, that the answer showed that Bradford owed Fowler nothing, and was only bound to the performance of his agreement to enter the land, upon the discharge of which he had already entered when the garnishment was served ; and they cited Blair v. Rhodes, 5 Ala. 648 ; Mims v. Parker & Coffman, 1 ib. 422.