McDonald v. Carney

Practice — Pleading—Pemwrrer. In an action brought by M. against 0., the defendant answered that after suit brought and before answer, he had been garnisheed in an action in the same court wherein one K., as receiver, etc., was plaintiff, and the plaintiff and others were defendants, K. being a receiver in an action wherein said 0. was plaintiff, and one S. was defendant. M. demurred to said answer on the ground that it did not state facts sufficient to constitute a defense: Held, That said answer set up facts sufficient to constitute a defense for the time being, and that the action of the court in overruling the demurrer was not erroneous.

Error from Lemermorth District Court. McDonald brought his action in the district court to recover judgment for fifteen hundred dollars for that much money had and received to and for the use and benefit of plaintiff. Defendant filed his answer, and as a second ground of defense alleged “ that John McKee, as receiver, in an action then pending in said court between Thomas Carney, plaintiff, and Thomas C. Stevens, defendant, brought his action as such receiver for Carney and Stevens against John T. McWhirt & Co., on the 22d day of October, 1868; that the plaintiff, Alexander McDonald, was a member of the firm of J. T. McWhirt & Co.; that said McWhirt & Co. were indebted to said John McKee, as receiver of Carney and Stevens, in the sum of $1,073.80 with interest; that McKee, as receiver of Carney and Stevens, had procured an attachment to be issued in said action against McDonald on the ground of non-residence, and a writ of garnishment issued against and served upon said Carney; and that by z-eason thereof said Thomas Oaz-ney was liable to pay to McKee, as receiver as aforesaid, any money due from him to said Alexander McDonald.” To this defense plaintiff demun-ed, holding that the facts thez-ein stated constituted no defense to the cause of action set forth in the petition. Upon argument the demurrer was overruled, to reverse which ruling the case is brought to this court. 1. The defense to which the demurrer was filed is not a set-off or counter-claim, nor is it new matter, either legal or equitable, constituting a defense to the cause of action set forth in the petition. Gen. Stat., 648, §§ 94, 95, 98. The fact that the debt owing by defendant to plaintiff has been attached is no reason why the plaintiff should not have his judgment. The defendant substantially admits that the plaintiff’s claim is correct, but alleges that since the plaintiff has commenced his action, McKee, as receiver, has attached the debt in his hands. This may be a reason, when properly presented to the court, why the cause should be continued to abide the decision of the attachment proceedings, or why, after judgment, execution should be stayed, or why judgment should be satisfied after payment of money in the attachment case; but it is no defense to the cause of action itself. The pendency of an attachment is no cause to abate the writ; for, non constat that judgment will ever be rendered in the attachment suit. 8 Mass., 456; 7 Yt., 123; 10 Martin, 609. “ There are many reasons why an attachment pending should not be pleaded in abatement. The entertainment of such pleas would lead to the most delicate and embarrassing questions of jurisdiction, and in the conflict, an error committed by either court would lead to the injury of one of the parties litigant. Either the garnishee might be compelled to pay the debt twice or the creditor might be injuriously affected.” 9 Ala., 887; 7 Ala., 157. 2. It has long been the settled doctrine in England and this country, when there is no express statute authorizing it, that a debt in suit cannot be attached. 16 Eng. O. L., 78, 79;. 5 Taunt., 558; 4 Dumf. &E., 312; 3 Wilson, 297, 304; 5 Johns, 101; 1 Salkeld, 280, 291; Wallace v. McOormell, 13 Peters, 151. 3. Carney is really one of the plaintiffs in the case of McKee v. McWhirt & Co., McKee being the receiver for Carney and Stevens. Now, can McKee, in behalf of Carney, do that which Carney could not do himself? Carney could not sue McDonald and garnishee himself, Can McKee, who acts for and in behalf of Carney, do so? Collier on Part., § 642; 6 Pick., 320; 28 Me., 389. That is, can Carney, plaintiff, make himself garnishee? We submit this cannot be done. In 13 Met., 473, the court held that a plaintiff cannot summon himself, nor can several plaintiffs summon one of their own number, as a garnishee in the process of attachment. 1. The receiver represents each and all of the parties to the suit, in which he was appointed, and all creditors interested in the same. 2 Story’s Equity, § 829. He is authorized to sue-in his own name. Civil Code, § 265. 2. The proceedings being in the same court, the plea is good. Drake on Attach., § 702; Hitt v.Iacy, 3 Ala., 104; 13 Peters, 136. The plaintiff has his remedy by giving bond under the statute and discharging the attachment. 3. The receiver, under our law, could sue the parties themselves if a case should arise in which he could not have his remedy without. This proceeding can clearly be sustained by the reason of the rule in such cases. Drake on Attach., § 543.