Keith v. Harris

1. Garnishment; Proceedings against Judgment-Debtor. A judgment-debtor may be held as garnishee of the judgment-creditor in favor of a creditor of the judgment-creditor, where the two actions are in the same court. 2. Injunction; Staying Collection of Judgment. And, in such a case, injunction will lie in favor of the judgment-debtor to restrain the collection of the judgment pending the garnishment proceedings.

Error from Allen District Court. J. R. Rudisill recovered a judgment in the district court against Wm. C. Keith, which judgment remained unpaid and unsatisfied. Rudisill was indebted to Nelson E. Acers, and Acers brought his action against Rudisill in the district court, obtained an order of attachment, and caused Keith to be summoned as garnishee of Rudisill. Afterward Rudisill sued out a writ of execution on his judgment against Keith, and the sheriff levied said writ on Keith’s property, and was about to advertise said property for sale, when Keith brought this action against the sheriff to enjoin and restrain him “from advertisng and selling,-and offering to advertise and sell, the said property, or in any other manner enforcing the payment of said judgment until the matter concerning which the said process of garnishment issued against the plaintiff herein shall have been determined.” The district judge made a temporary restraining order, and set the motion for an injunction for hearing on the 16th of August, 1871, and directed that notice thereof be given to the sheriff. At the time appointed the parties appeared before the district judge, and upon the hearing and consideration of said motion said judge denied said motion, and made an order refusing to grant the injunction prayed for by Keith; and from this order Keith appeals to this court. 1. The distinctions between the terms “attachment” and “garnishment” are arbitrary — attachment signifying the actual levy on property in the actual possession of the attachment-cie&ior, while by “garnishment” is meant an implied levy on attachment-debtor’s property in another’s possession. Hence the indiscriminate use of authorities upon the subject of garnishment, as used in Drake on Attachment, §§ 504, 453, and cases there cited. 2. The writ or order of attachment requires the officer to “attach the lands, tenements, goods, chattels, stocks, rights, credits, moneys and effects of 'the defendant in his county, not exempt,” etc. Civil code, § 193. If the rights and credits of the defendant arc attachable property, and that without any specified exception as to the kind or nature of the “ rights” and “ credits,” then a judgment, it being a “credit,” is attachable in a suit against that judgment-creditor. It may be said to be self-evident that, “where there is a judgment-creditor there must be a credit, and that credit the judgment.” As sustaining the doctrine that judgments are attachable, see 2 Miles, 130; 1 Penn. St., 380; 31 Penn. St., 114; Harrington, 461; 29 Ala., 330; 1 Smedes & Mar., 598; 10 id., 371; 6 Blackf., 398; 26 111., 301; 11 Conn., 168. Of course, a judgment, that is, the record thereof, cannot be seized; and the only way to subject a judgment to attachment is by garnishment of the judgment-defendant. Drake on Attach., § 626. A garnishee is liable to the plaintiff in attachment for all property, moneys and credits in his hands, or due from him to the defendant from the time he is served with notice: Code, § 206. If the deductions above are correct, if a judgment is attachable by garnishment of the judgment-debtor, and if the garnishee is liable to the plaintiff in attachment from the-time of service for moneys or credits due from him to the defendant, then Keith had the right to ask, and it was the-duty of the district judge to grant, the injunction prayed for. A copy of the order of attachment in the case of “Acers v.. Rudisill” was served on Keith July 17th, 1871, with a notice that all the property, moneys, rights, credits and effects in his possession or under his control belonging to said Rudisill were attached, and that he appear and answer as garnishee of said Rudisill as required by law. Now “by laAV,” (§ 215, civil code,) he Avas required to ansAver on the 21st of November 1871, that being the first day of the next term of the district court. And yet, in about two weeks-later the clerk of the district court (at the instance of Rudisill) issues an order for the sale of Keith’s property because Keith does not pay Rudisill, and the defendant here, the sheriff,. AAras about to execute that writ, thus compelling Keith to do Avhat by law he Avas forbidden to do. He has no remedy except by injunction. To permit his property to go to sale,, is to lose it; and if he is held liable as garnishee he Avill be obliged to pay the amount of the judgment again. .