Opinion
4 Div. 341.
November 9, 1944.
W. L. Lee and Alto V. Lee, III, both of Dothan, for petitioner.
Garnishment proceedings were provided to enable a creditor to reach property and funds of a debtor which could not be reached by execution but which, in equity and justice, should be applied to the payment of a debt, and is essentially a statutory remedy. Allen v. Woodruff, 2 Ala. App. 415, 56 So. 247; Dishman v. Griffis, 198 Ala. 664, 73 So. 966; Porter Blair Hdw. Co. v. Perdue, 105 Ala. 293, 16 So. 713, 53 Am.St.Rep. 124. In order to justify the issuance of a writ of garnishment there must be an existing indebtedness and garnishment must be necessary to obtain satisfaction thereof. This only means an honest belief that garnishment is necessary. Mobile Furniture Commission Co. v. Little, 108 Ala. 399, 19 So. 443. Garnishment may be sued out on a judgment though no execution has been issued on it. Faulkner v. Chandler, 11 Ala. 725.
O. S. Lewis, of Dothan, opposed.
The only authority for the issuance of writ of garnishment on a judgment is found in § 996, Title 7, Code of 1940. Execution could not legally issue within less than five days without the affidavit required by § 458, Title 13, of the Code. The five days given a defendant before execution could legally issue was given him by law, in order that he might determine whether he desired to appeal the case, without further costs, and no one has the right, except he be authorized by statute, to take this away from him. The words "cant issue" in § 996, supra, mean lawfully issue.
The statutes of this state recognize the right of the judgment debtor to a stay of execution for a period of time from the date of the rendition of the judgment. On judgments recovered in the circuit court, the stay is for a period of ten days. § 508, Title 7, Code of 1940; § 119, Title 13, Code of 1940. On judgments recovered before a justice of the peace, the stay is for a period of five days. § 456, Title 13, Code of 1940. A consideration of the reasons for providing for this stay of execution will aid in reaching a proper conclusion in this case.
The statutory period is allowed the judgment debtor so that he may have an opportunity to consider his future course, to determine whether to continue the litigation by appeal or otherwise, or to satisfy the judgment and thereby prevent the accrual of further costs and expense. In the event he determines to pay off the judgment, the period also gives an opportunity of arranging for funds necessary to satisfy the judgment. That these are the reasons on which the policy of the foregoing statutes was founded, is well supported by the authorities. First Nat. Bank of Birmingham v. Garrison, 235 Ala. 687, 692, 180 So. 690, 694; Scribner v. Whitcher, 6 N.H. 63, 23 Am.Dec. 708; Washington Nat. Bank v. Williams, 188 Mass. 103, 74 N.E. 470; 23 C.J. p. 374; 38 C.J.S., Executions, § 66. See also Ex parte Moore, 231 Ala. 209, 164 So. 210.
It may be added at this point that while the foregoing period of waiting is for the benefit of the judgment debtor, the law does not intend thereby to jeopardize the rights of the judgment creditor. If the judgment debtor is about to fraudulently dispose of his property, the statutory period can be eliminated upon appropriate affidavit. § 458, Title 13, Code of 1940.
Since it is obviously the policy of the statutes to protect a judgment debtor for a limited period of time after the rendition of judgment from the costs and vexation of an execution, it does not seem reasonable that the Legislature would intend to nullify the purpose of the statute by contrary provisions. Yet if a garnishment can be issued within the statutory period, the foregoing benefits to the judgment debtor will be lost. It does not seem reasonable to provide that for a limited period of time, these benefits may be enjoyed where an execution is concerned and yet denied where a garnishment is involved.
Besides, it cannot be denied that a garnishment cannot rightfully issue on a judgment which contains a stay of execution, until the stay has been lifted, where the court has the power to order the stay. 33 C.J. p. 1212; 23 C.J. pp. 521, 522; 33 C.J.S., Executions, § 139; Ann.Cas. 1918C, p. 245. Here the stay is written into the judgment by operation of law. § 456, Title 13, Code of 1940.
"In order to authorize garnishment thereon a judgment must be final, valid, unsatisfied, and definite as to the amount of recovery. It must be a subsisting domestic judgment, the execution of which has not been suspended by appeal or otherwise." 38 C.J.S., Garnishment, § 12, pp. 217, 218.
We approve the conclusion and reasoning of the Court of Appeals.
Procedural questions relating to common law certiorari are not presented to this court.
The judgment of the lower court is affirmed.
Affirmed.
All the Justices concur.