Garrett v. Mills.

TYSON, C. J.

— This case was tried by the presiding judge without a jury, and, upon request, the court made a special finding of the facts. — Code 1896, § 3320. We are confined, of course, in our review of it, to the deter *607 mination of the single question whether the facts as found will support the judgment rendered. — Alabama & Georgia Lumber Co. v. Tisdale, 139 Ala. 250 , 36 South. 618 . It appears that the plaintiff, Mayfield Woolen Mills, in 1901, obtained a judgment against one Morris for the sum of $1,114.28, besides costs of suit. On this judgment the plaintiff sued out a writ of garnishment, on October 27, 1902, against the First Bank of Elba. In April, 1905, a judgment was obtained against the garnishee bank for $357.38. From this judgment the bank appealed to this court, superseding it by proper bond, upon which Levi Powell and W. D. Hutchinson were its sureties. The judgmént was affirmed on April 28, 1906, and was subsequently paid by the sureties, and assigned by the plaintiff to them, for whose benefit this suit is now being prosecuted. — Code 1896, § 3888. Before the appeal was taken the plaintiff in judgment ob: tained a writ of garnishment, upon the judgment against the bank, against the present garnishee an appellant here, returnable to the October term, 1905, of the court, which convened on the 2d day of that month. By this writ this garnishee was required to answer within the first three days of the term. — Code 1896, § 2175. The supersedeas bond by the bank was not executed until the 7th day of October, 1905 — more than four days after the return day of the writ of attachment, and moré than three days after an order had been entered continuing the cause and permitting the garnishee to answer at the next term of the court. The date of this order is shown to be October 4, 1905. It is true that on the 28th day of September, just preceding the convening of the court, the bank gave security for costs of the appeal; but this did not operate to suspend the judgment, nor to prevent its enforcement by execution or otherwise.— Ex parte Hood, 107 Ala. 520 , 18 South. 176 . This sus *608 pension only took place after the supersedeas bond was executed. But its execution did not operate to deprive the court of the jurisdiction it had acquired by the writ, or destroy its efficacy, unless the judgment superseded had been reversed by this court upon the appeal. It did, it is true, pending the appeal, suspend the right of the trial court to proceed to a hearing of the garnishment suit against the appellant until the appeal was decided by this court; and this effect, it appears, the trial court accorded to it by continuing the cause. When the appeal was disposed of by an affirmance of the judgment, that terminated the suspension, and the trial court was free to proceed with the cause, unless it had been discontinued in the meantime. — 2 Cyc. 908, 909; 20 Ency. Pl. & Pr. 1240. There is clearly nothing in the case of McArthur v. Dana, 61 Ala. 548 , which is opposed to the principies we have declared. It is entirely true, as there said, that “the affirmance here rendered merged the judgment of the circuit court in ours, authorized execution to be issued from that court for the collection of the judgment as there rendered against Dane (the defendant), and placed it out of the power of the circuit court to alter or change that judgment in any respect.” But this is far from holding that the writ of garnishment as a process for the collection of the judgment became functus by reason of the appeal and the affirmance. To the contrary, neither the supersedeaes nor the judgment of affirmance operated to impart or destroy the validity of the judgment appealed from. The motion to quash the writ of garnishment "was therefore correctly denied.

This brings us to a consideration of the question, whether this, suit was discontinued. The contention that it was is based upon the fact that the clerk of the court failed to bring it forward on the docket to the spring *609 term of the court, 1906, when on motion of plaintiff, a judgment nisi was rendered against this garnishee. “The proceeding by garnishment in point of law is the institution of a suit in which the creditor is permitted to proceed against the debtor of his debtor, and therefore would seem to be governed by the general rules applicable to other suits.”- — Travis by Tartt, 8 Ala. 576 . In Griel v. Loftin, 65 Ala. 591 , it was said: “It has been uniformly held, and long since settled, in this state, that a proceeding by garnishment to subject the funds of a defendant in attachment or execution to the judgment or debt of a creditor is a suit, and as such is to be governed, as far as practicable, by the general rules of practice applicable to other suits.” It has also been uniformly held by this court that the neglect or refusal of the clerk to discharge his duty will not operate a discon tinuance. — Ex parte Humes, 130 Ala. 203 , 30 South. 732 , and cases there collated. There must be some positive action by the plaintiff, by which a cause is taken from and remains off the docket of the court, to work a discontinuance. — Ex parte State, 71 Ala. 367 . Nor did the plaintiff’s omission to take a judgment at the term at which the clerk neglected to carry the case forward on the docket operate a discontinuance or affect the jurisdiction of the court to render a judgment at a subsequent term. — Steiner Bros. v. First National Bank, 115 Ala. 379, 388 , 22 South. 30 ; Robinson v. Starr, 3 Stew. 90 . The cases of Barclay v. Barclay, 42 Ala. 345 , and Gary v. Bank, 11 Ala. 771 , relied upon by appellant’s counsel as supporting their contention on this, point, clearly have no application.

The next point made by appellant is that, as Hutchinson ( one of the parties to whom the judgment sought to be enforced was transferred) became possessed of $6,000 *610 of the assets of the hank which was liable to its debts, so much of these assets as will satisfy the judgment should be applied to its satisfaction. It is not shown by the finding of facts that Hutchinson was indebted to the judgment debtor bank by reason of the reception of these assets, or on any other account. It may be that the assets he received could be, under the circumstances, subjected by creditors of the bank to the payment of their demands — a question we do not decide; but unless there was some agreement between him and the bank by which he assumed the payment of its debts, or agreed to apply the assets to their satisfaction; the bank would not have a right of action against him, and clearly, if the demand he here seeks to enforce by the writ of garnishment could not be defeated by the bank, it cannot be defeated by the garnishee. By this, however, we do not wish to be understood as intimating that, if the bank could have invoked the defense, the garnishee may avail himself of it. The law is otherwise. The plaintiff’s right to have the garnishee charged for the debt due by him to the bank depends upon and is measured, 'in all cases except where there is fraud, by his liability to the bank. In other words, if the bank could make him liable by an action at law upon his debt sought to be subjected, the plaintiff can subject it by process of garnishment.— Rood on Garnishment, § 46 et seq. This author in section 48 says: “The garnishee is not entitled to occupy in any respect a better position than if sued by the defendant. On the other hand, it is a universal rule that under no circumstances is the garnishee to be placed in a worse condition by operation of the proceedings against him than he would be in if the defendant’s claim ■ against him were enforced by the defendant himself. Any defense which would be good against the latter is available against the plaintiff.” “The plaintiff,” says *611 the author, “steps into the defendant’s shoes and acquires his rights, no more and no less.” — Section 46. A garnishee is a stakeholder, and is supposed to be indifferent as between the plaintiff and defendant, and is protected by the payment of the judgment against him, though irreifuhir.Montgomery Gas L. Co. v. Merrick. 61 Ala. 584 , 536.

On the trial of the contest in this case the indebtedness of the defendant to the plaintiff was not involved. The only question to be determined was whether the garnishee was or ivas not indebted to the defendant in gar nishment. — Jones v. Pope, 6 Ala. 154 ; 20 Cyc. 1102. These principles also dispose of the contention of the appellant, adversely to him, that the trial court should have allowed a credit of the $200 paid to plaintiff by Malone upon the judgment. We have considered all the insistences urged against the correctness of the judgment appealed from, and find none of them were well •taken.

Affirmed.

Simpson, Anderson, and Denson, JJ., concur. .