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McGill v. Bone.

PENELOPE MCGILL VS. DAVID BONE.

Where a judgment is obtained in the name of A. against B., a garnishment

thereon cannot legally be sued out by C. in his own name, as the alleged assignee of A., against a debtor of B., to compel him to appear and answer what he owes B.; and if the debtor, when thus garnisheed, make the objection at the proper time, the process of garnishment will be quashed; yet if, without making any objection to the form of the process, or questioning the right of the assignee to sue it out, he appear and answer how much he owes the defendant in the original judgment; and the alleged assignee of that judgment take judgment in his own name against the garnishee for the amount thus disclosed to be due, it will not be erroneous; nor will the judgment thus taken be set aside.

In error from the circuit court of Jefferson county; Hon. S. Posey, judge.

At the December term, 1838, the Commercial Bank of Rodney, recovered judgment against Thomas A. Compton, administrator of John Ducker, deceased, for $6769, upon which an execution was issued to the June term, 1839, of said court, which was returned no property.

On the 2d of April, 1849, David Bone, styling himself "plaintiff in a judgment rendered in the said circuit court of Jefferson county, at the December term thereof, 1838, in favor of the Commercial Bank of Rodney, against Thomas A. Compton, administrator of the estate of John Ducker, deceased, and assigned by Thomas Freeland and John Murdock, assignees of the Commercial Bank of Rodney, to the said David Bone,' made affidavit before the clerk of said court, that the defendant, Compton, as administrator, had no visible property in his possession, upon which a levy could be made sufficient to satisfy said judgment or execution; and suggesting that Penelope McGill and others were indebted to the estate of Ducker, prayed for writs of garnishment against them.

McGill v.

Bone.

On the same day, a writ of garnishment was issued by the clerk of the Jefferson circuit court, reciting the judgment rendered at the December term, 1838, in favor of the Commercial Bank of Rodney, against Compton, as administrator of Ducker, for $6769, and costs, and that, on the 29th day of January, 1849, the said Commercial Bank of Rodney, by their assignees, Thomas Freeland and John Murdock, assigned and transferred said judgment to David Bone; and that the said David Bone,

the real plaintiff by virtue of said assignment and transfer, had made affidavit, &c.," and then commanding the said Penelope McGill and others to appear at said Jefferson circuit court on the third Monday in April, 1849, to answer in what amount they were indebted to the estate of said Ducker, &c.

This writ was executed upon Penelope McGill on the 14th of April, 1849.

On the 18th of April, 1819, Mrs. McGill answered, that she was indebted to said estate in a sum between ten and twenty thousand dollars.

On the 19th of April, 1849, judgment was rendered by the circuit court of Jefferson county, in favor of David Bone against Penelope McGill, for $10,000.

From this judgment Mrs. McGill has prosecuted this writ of error, and assigned, as one of the errors, the improper rendition of the judgment in favor of Bone. To this the defendant plead, that the judgment complained of had been rendered on confession.

John B. Coleman, for plaintiff in error, insisted that the judgment was glaringly erroneous.

1. A garnishment upon a judgment at law, is a legal remedy given by statute; it is the creature of the statute, and can only be issued in the manner, and upon the terms prescribed by the statute.

One of those terms, and it is a condition precedent, is, that before a garnishment shall issue upon a judgment, the “plaintiff in execution, his agent or attorney," shall first make affidavit, &c. Hutch. Code, 911, $ 1.

McGill v. Bone.

An affidavit was made in this case by David Bone, but he was neither the plaintiff in execution, nor the agent or attorney of the plaintiff in execution.

This garnishment, then, was void for want of authority in the clerk to issue it.

2. Again, the garnishment was issued upon the judgment of the Commercial Bank of Rodney, upon the affidavit and suggestion of Bone, and in his name, and for his benefit, he claiming to be the real plaintiff, by virtue of an alleged assignment. The garnishment given by the statute is but legal process. It is a substitute for an execution in cases where the defendant has no property which an execution can reach. It is purely a legal proceeding and remedy. Judgments are not assignable so as to enable the assignee to proceed upon them at law in his own

Wilson v. McElroy, 2 S. & M. 241 ; Van Houten v. Reily, 6 lb. 440; Beazley v. Prentiss, Op. Bk. D. 43, [ante, 97.]

3. It cannot be said that Mrs. McGill's answer, adınitting an indebtedness, is like a confession of judgment, and that she is thereby estopped from contesting the legality of the proceeding. She has admitted no indebtedness to Bone, and has assented to no judgment in his favor. She was called upon to answer in what amount she was indebted to the estate of Ducker.

name.

H. T. Ellett, for defendant in error.
1. This was a judgment by confession or on confession.

On the return of the garnishment, if the garnishee desired to avail herself of the point that the assignee of the judgment against the estate of Ducker could not have a garnishment in his own name as assignee, she could have made the point by motion, demurrer, plea or answer. But she made a general answer, taking no exception to the character in which the plaintiff sued, and acknowledging her indebtedness. Upon her confession, a judgment followed, precisely as it would have followed a confession of any other debt in open court. This was the judgment on confession.

A judgment on confession shall be equal to a release of errors. Hutch. Code, S77, S 94. No writ of error shall issue to reverse

McGill v. Bone. any judgment rendered by confession. Ib. 931, S 4; How. & Hutch. 540, $ 47. This, it seems, must be specially pleaded. Boone v. Poindexter, 12 S. & M. 647 - 649.

2. The error is cured by the statute of jeofails. How. & Hutch. 591, $ 11; Hutch. Code, 848, 849, § 91.

If this is not a judgment by confession, it must be a judgment by non dicit ;” and as the defect in these proceedings could have been taken advantage of by demurrer, the defect is cured by the judgment. Reaves v. Dennis, 6 S. & M. 89.

3. The error is not to the prejudice of the plaintiff in error. As garnishee she is a mere stakeholder. The judgment does not affect her interest. It merely appropriates the money in her hands belonging to Ducker's estate to the payment of the judgment of the Rodney Bank. The judgment and its transfer to Bone, are not disputed. The money is to be paid to Bone, at all events, and it can make no difference to her whether it is awarded to him in his own name, or in that of the Bank.

Mr. Justice Clayton delivered the opinion of the court.

In 1838 the Commercial Bank of Rodney obtained a judgment in the circuit court of Jefferson county, against the administrator of John Ducker, deceased, for the sum of $6769, with costs of suit. In 1847 Daniel Bone filed an affidavit, and caused a process in garnishment to be issued, setting forth that the judgment above mentioned had been assigned and transferred to him, by Freeland and Murdock, the assignees of said bank, and that he thereby became the real plaintiff in the case, and calling upon the plaintiff in error to appear and answer what she owed to the said estate. She appeared in obedience to the process, and took no exceptions of any kind to the proceeding, but answered that she was indebted to the estate of Ducker, between ten and twenty thousand dollars. Judgment was therefore entered against her for the sum of ten thousand dollars, from which a writ of error was taken to this court. The error complained of is, that Bone could not legally sue out the writ of garnishment in his own name.

If this objection, had been made at a proper time, in the court

McGill v. Bone.

below, it ought to have been sustained. The garnishee has the right to require that the judgment against him should be valid, so as to protect him from any farther claim, upon the part of the original creditor. If this protection is secured, it is all that he can require.

The judgment against the garnishee is a transfer by operation of law of the debt, from the original judgment debtor to the judgment creditor. For the purposes of such transfer, defects in the original judgment cannot be looked into, if it be not absolutely void. Matheny v. Galloway, 12 S. & M. 475; Whitehead v. Henderson, 4 S. & M. 704. In this case no objection is made to the judgment against Ducker's administrator, but only to the transfer of the judgment to Bone. A judgment is not assignable by law, so as to pass the legal interest, but a transfer will pass the equitable interest, and confer a right to use the name of the judgment creditor. Then by this transfer Bone became possessed of the equitable title to the judgment, with power to use the name of the plaintiff to enforce it. A payment to him by Ducker's administrator would have been a discharge; and a condemnation of the debt due to the estate from the plaintiff in error, and its subsequent payment, would be valid, and would likewise discharge the judgment, and release her from the claim of Ducker's administrator.

It is now too late to question in this court, the transfer to Bone, as alleged in the process; the answer is a virtual admission of that fact, as it does not put it in issue. If the proceeding by garnishment is at all in the nature of a new suit, (and to some extent it certainly partakes of that character,) then the party must be held to have waived a defence not made at the proper time. An assignment can only be questioned in a particular manner.

The judgment is affirmed.

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A re-argument was applied for and refused.

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