Summary
In Tindell v. Wall, 44 N.C. 4, it was held that payment made by a garnishee to his creditor, the defendant in an attachment and garnishment proceeding, after the service of the writ of garnishment, did not relieve the garnishee of liability to the plaintiff in the action in which the writ of garnishment was issued.
Summary of this case from Newberry v. Fertilizer Co.Opinion
December Term, 1852.
1. The service of an attachment in the hands of a garnishee, creates a lien on the debt or money due by him to the debtor, so that he cannot, by payment to the debtor, subsequent thereto, discharge himself from liability.
2. Therefore, where the garnishee, in his garnishment, admits his indebtedness to the defendant in the attachment, and subsequently thereto his agent pays the debt so admitted to be due by him, the plaintiff is nevertheless entitled to have the debt condemned in the hands of the garnishee to satisfy his demand.
3. Nor is it any defense to the garnishee, that before he was summoned, his agent had notice from a third person not to pay the debt, as the plaintiff had threatened, or was about to sue out an attachment.
THE defendant was summoned as garnishee on 24 December, 1849, under an attachment of the same date, sued out at the instance of the plaintiff against one Henry Adcock, residing in Mississippi, and returnable to the January Term, 1850, of ANSON County Court. The defendant, in his answer, stated in substance: That he was indebted to Adcock in the sum of $150; but that on 8 November preceding, his brother, Edwin Wall, also a resident of Mississippi, being then about leaving for that State, agreed with him to pay Adcock the said debt, on his return there. He further states in his amended (4) answer in the Superior Court, that he did not, from that time, see or hear from his brother until about April, 1850, when he returned to Anson, and brought him his note to Adcock, and informed defendant that he had paid it off in March, 1850, in pursuance of their arrangement the fall before; that the payment to Adcock by his brother was made without any other direction from defendant than that given in November, 1849, and that he was informed by him, and believed that the payment was made by his brother, without any knowledge of the attachment being sued out by the plaintiff, or of the defendant being summoned as garnishee. The defendant further stated that he had been informed by his father, James Mials, that he wrote to Edwin Mials, in Mississippi; that the plaintiff threatened suing out an attachment against Adcock, and not to pay the debt to Adcock; but of this letter the defendant had no information, until summoned under the attachment.
Strange for plaintiff.
J. H. Bryan for defendant.
On the trial before Caldwell, J., at Anson Superior Court, on the last circuit, several issues were submitted to the jury, to which they responded by their verdict: (1) That the debt of $150, due from Mial Wall to Adcock, was paid to said Adcock by Edwin Wall, of Mississippi, on 11 March, 1850; (2) that Edwin Wall had no notice from Mial Wall that he had been summoned as garnishee at the instance of the plaintiff in the attachment against Adcock; (3) that said Mial Wall did not, after he was summoned, countermand the payment to Adcock by Edwin Wall, before the payment was made in Mississippi; (4) that Edwin Wall had no notice that plaintiff had sued out the attachment against Adcock before he made the payment as aforesaid; but that he had notice from a third person before he made the payment, that the plaintiff spoke of taking out an attachment; (5) that Mial Wall has sufficient time to countermand the payment of $150 made by Edwin Wall to Adcock, between the service of the garnishment and the payment of the money by Edwin Wall to Adcock. In addition to the finding by the jury, it was admitted by the parties, that the single bill held by Adcock against Mial Wall was negotiable paper in Mississippi, and that it was there paid by Edwin Wall to Adcock, as agent of Mial Wall.
Upon the verdict, his Honor gave judgment for the plaintiff (5) against Mial Wall for the amount of the plaintiff's debt, on which judgment had been theretofore obtained, and the costs of suit, and the defendant appealed.
The question in this case arises under the garnishment of the defendant. The defendant was indebted to one Adcock, who lived in the State of Mississippi, and Adcock was indebted to the plaintiff, who sued out an attachment against him, and the defendant was summoned as garnishee. In his answer, the defendant admitted his indebtedness to Adcock, but stated that before the attachment issued, he had directed his brother, who was indebted to him, and lived in Mississippi, to pay Adcock his debt; and that he was informed by his brother that he had paid it over to Adcock on the 2d Monday of March, 1850. Upon the trial of the garnishment, several issues were submitted to the jury, to all of which they responded in their verdict; and find that Edwin Wall, the agent of defendant, paid the money to Adcock on 15 March, 1850, at which time he had no notice from the defendant of his being summoned as a garnishee in the case, and that the defendant had sufficient time, after his being summoned as such garnishee, to have countermanded his authority given to his agent to make such payment. They further find that before the payment was made by the agent of the defendant, he, the agent, had been informed by a third person, that the plaintiff, Tindell, threatened to take out an attachment against the property of the said Adcock, in Anson County. Upon this finding, the court gave the judgment for the plaintiff. In this judgment we perceive no error. At the time the defendant was summoned as a garnishee, he was indebted to Adcock in a sum sufficient to discharge his claim against the latter. The attachment issued on 24 December, 1849, and he was summoned the same day. The attachment created a lien upon the debt of money due from the defendant to Adcock, so that the defendant could not, by any payment to Adcock subsequent thereto, discharge himself from his liability to the plaintiff in the attachment. It was his duty to have immediately countermanded the authority (6) given to his agent. He failed to do so, although he had sufficient time to have done it. If he has to pay the money a second time, it is the result of his own negligence. The information which the jury find was given to the agent, that the plaintiff threatened to take out an attachment, was no countermand of the authority given to him to make the payment, and cannot interfere with the plaintiff's right to a judgment condemning the debt for the payment of his judgment.
PER CURIAM. Judgment affirmed.