Opinion
(June Term, 1835.)
Where attachments were issued, and a garnishee summoned, at the instance of different creditors, and at the same term of the Court, judgments were obtained against the garnishee in each case, for the sum due by him to the attached debtor, and executions issuing thereon against the garnishee tested of the same term, were put into the hands of the same sheriff; the money collected by the sheriff, must be applied to the executions pro rata, without regard to the priority of time in issuing the attachments and summoning the garnishee.
THIS was a RULE obtained in the County Court of Beaufort, upon the defendant, as the sheriff of said county, to show cause why the plaintiffs should not have their rateable proportion of a sum of money, raised by him under the circumstances set forth in his return, which was as follows:
"A writ of attachment was sued out by John Myers v. Lawrence Van Buskirk, on the 17th day of January, 1834, and the same was by him delivered to the sheriff of Beaufort County, and was by him served on Joseph Potts as garnishee; on the same day a writ of attachment was sued out by D.C. Freeman and George Houston, against the same defendant, and the same was delivered to the said sheriff on the same day, but after that at the suit of John Myers was delivered; and the said sheriff, having both writs of attachment and notices on said writs in writing, served the same upon said Joseph Potts, as garnishee in manner following, to wit: `The writ of John Myers was first to me delivered, and I serve this notice on you Mr. Potts; the writ of Freeman and Houston, was next to me delivered and I serve this notice on you also.' Judgments were regularly entered up in both of said causes, and the money in the hands of the said garnishee subjected in both and raised under executions issued in both causes by said sheriff; which money is less than enough to satisfy the judgment recovered by John Myers against said garnishee."
The rule was discharged in the County Court, and the sheriff was directed to apply said money first to the satisfaction of the judgment in favour of the said John Myers, and the balance, if any, to the judgment of Freeman and Houston. From this judgment the plaintiffs appealed to the Superior Court, where upon the last Circuit at Beaufort, his Honor Judge STRANGE was of opinion, that upon the statement, nothing more was presented than the ordinary case of two judgments, against the same individual, at the suit of different plaintiffs obtained at the same term, and upon which, executions had issued tested of the same term; for that the respective judgments against the garnishee were personal claims against him, and in the present state of the proceedings no question of specific lien arose. His Honor, accordingly decided, that the plaintiffs were entitled to have a pro rata distribution of the moneys raised by the sheriff, under the circumstances set forth in his return. And from this decision the defendant appealed.
J. H. Bryan, for the defendant — Attachments were issued by Freeman and Houston, and Myers, against a northern debtor, and Potts was summoned as garnishee. He had no tangible property of the northern debtor in his hands, but was indebted to him; and this debt was attached by Myers, and by Freeman and Houston. The attachment at the instance of Myers was first issued; there was a judgment of condemnation — and there was also a judgment of condemnation in the other case. Fi. fas. were issued. The Judge was of opinion that the only question presented by the case, was, whether the money made was not equally applicable to all the fi. fas. and therefore, directed that it should be applied pro rata.
No counsel appeared for the plaintiffs.
The act constituting the Supreme Court, requires that that Court shall look into the whole record and render such judgment as the Superior Court ought to have rendered. An examination of the whole record will show the facts above stated. If the property had been tangible, and liable to the levy of an execution, there might have been some objection to a fi. fas. being issued instead of a ven. ex. but here, after the garnishee rendering his statement, and the money due being condemned to be applied to the claim of Myers, whose attachment was first issued, although the same proceedings were had in the other attachments, yet there does not appear to be any laches or waiver of the advantage which Myers derived from his superior diligence. In this case it was a debt, which was subjected in the hands of the garnishee; in such case, the garnishee is summoned and the judgment is against him absolutely for the debt attached. The question then is, did Myers gain a prior right of satisfaction by his superior diligence in having first issued his attachment? (There are authorities in the American Digest on this question, under the proper head, particularly a case from Bay's Rep.) The general opinion here sanctioned by the practice of our most eminent lawyers, has been, that the attachment first issued, was entitled to the priority of satisfaction. Taking this to be so, how has this advantage been lost? It was not the duty of the attaching creditor to take care of the interests of the garnishee. He, the garnishee, might no doubt have pleaded to the subsequent garnishments, that he had already been garnisheed or warned by the creditor Myers, and thus protected himself from any loss beyond the fund in his hand.
— It is possible, that an inspection of the records on the suits wherein the respective judgments were rendered and executions issued in behalf of the creditors, against the garnishee, might enable us to see more distinctly the facts out of which this controversy has arisen. But these are not referred to as making any part of the present case, and we have no right to invoke them as evidence. Confining our attention to the case before us, we are obliged to understand that a judgment was rendered in favor of Myers against Potts, for a sum of money, to answer such recovery as he might effect against Van Buskirk; and that at the same term, a judgment was also rendered in favour of Freeman and Houston, against Potts for the same amount, to answer such recovery as they might effect against the same defendant. If these two judgments were for one and the same debt due from Potts to the defendant in the attachments, it would seem as if gross injustice had been done to Potts. He could certainly have prevented this, by distinctly stating in his second garnishment, that he owed nothing to the defendant beyond a certain sum, which was already confessed to another plaintiff in attachment, and condemned to answer his recovery. But there are two judgments against him, and upon these, executions severally issue tested of the same term, which are delivered to the same sheriff. He is not only not bound, but is not at liberty to look beyond these executions. It is his duty to levy the amount commanded in each, if the defendant has the ability to pay. What is raised upon them is, according to a series of adjudications which cannot be disturbed, to be distributed pro rata among the execution creditors, and for the balance not collected, they can proceed against the sheriff or their debtor, accordingly as circumstances may render one or the other course expedient. There may be facts not appearing before us, and which perhaps could not with propriety, be made to appear upon this application, which would, if shown to the proper tribunal, cause one or the other of these creditors to be inhibited from obtaining satisfaction of their judgment against Potts. But in the present state of things, we think no other decision could have been rightfully rendered, than that which was pronounced in the Superior Court.
PER CURIAM. Judgment affirmed.