Summary
In Liversage v. Gibson, 222 Ala. 672, 133 So. 715, 716, Bouldin, J., held that garnishment under the provisions of Section 996, supra, is a species of attachment.
Summary of this case from Martin v. SteakleyOpinion
1 Div. 639.
March 5, 1931. Rehearing Denied April 23, 1931.
Appeal from Circuit Court, Mobile County; Alex T. Howard, Judge.
J. G. Bowen, of Mobile, for appellants.
There was no breach of the bond, and no cause of action existed. Painter v. Munn, 117 Ala. 322, 23 So. 83, 67 Am. St. Rep. 170; Irwin v. Cotney, 214 Ala. 417, 108 So. 235. This action on the bond was prematurely brought, as the suit on which the garnishment was based had not been determined. Dishman v. Griffis, 198 Ala. 668, 73 So. 966; First Nat. Bank v. Dunn, 102 Ala. 204, 14 So. 559. Judgment in the main suit in favor of Liversage was res adjudicata as to this suit on the bond. Painter v. Munn, supra; Irwin v. Cotney, supra; Askine Marine v. Logan (Ala.App.) 130 So. 768.
D. P. Moore, of Mobile, for appellee.
Mere existence of a debt does not afford ground for a garnishment. Irwin v. Cotney, 214 Ala. 417, 108 So. 235; Mobile F. Co. v. Little, 108 Ala. 399, 19 So. 446. Nor does the fact of a judgment in the main suit constitute a defense to a suit upon the bond. Bradford v. Lawrence, 208 Ala. 248, 94 So. 103. Section 6214 is applicable to all attachments and garnishments. Goldstein v. Nobles, 198 Ala. 430, 73 So. 822; Barber v. Ferrell, 57 Ala. 446. Good faith and honest belief is no defense. Corona Coal Co. v. Thomas, 212 Ala. 56, 101 So. 673. The suit on bond could be brought at any time after the garnishment was sued out. Goldstein v. Nobles, supra; Alsop v. Lidden, 130 Ala. 553, 30 So. 401; Brown v. Master, 104 Ala. 463, 16 So. 443; Goldstein v. Drysdale, 148 Ala. 486, 42 So. 744; Lane v. Ala. P. S. Banks, 185 Ala. 656, 64 So. 608.
Garnishment in aid of pending suit, Code, § 8052, is a species of attachment; and suit on the garnishment bond, Code, § 8054, may be brought before or after the suit, in aid of which garnishment issues, is determined. Code, § 6214. Dishman v. Griffis, 198 Ala. 664, 73 So. 966.
Such garnishment is "wrongful" unless two facts concur: (1) The existence of a debt or demand in aid of the collection of which garnishment is sued out. (2) Garnishment must be "necessary to obtain satisfaction thereof."
True, the form of affidavit, Code, § 8053, need only depose that garnishment "is believed to be necessary," etc. But the issue of fact is not what affiant believed, nor the good faith of such belief. If the jury, in an action on the bond, be reasonably satisfied from the evidence that it was not necessary to resort to garnishment, the plaintiff should be awarded actual damages. Such has been the long-settled construction of this statute. Mobile Furniture Com. Co. v. Little, 108 Ala. 399, 19 So. 443; Ala. State Land Co. v. Reed, 99 Ala. 20, 10 So. 238; Pounds v. Hamner, 57 Ala. 342.
A judgment for plaintiff in the original suit is, as of course, not res adjudicata of the question of the wrongful suing out of the garnishment. It merely meets one of the required conditions upon which the right to garnishment depends.
Unless tried by proper proceedings in the attachment suit, the question of wrongful attachment is left open for adjudication in an action on the bond.
The rulings of the trial court were in accord with these principles. The evidence was sufficient to support the judgment for plaintiff.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.