
    McEACHIN vs. REID.
    [CONTEST BETWEEN JUDGMENT CREDITOR AND GARNISHEE.]
    1. Lien of garnishment destroyed by decree of insolvency. — If the defendant in a pending suit dies, and his estate is regularly declared insolvent, before the rendition of judgment, the lion acquired by the previous service of a garnishment is thereby destroyed, and no judgment can be rendered against the garnishee. (Byrd, J., dissenting.)
    
    Appeal from the Circuit Court of Perry.
    Tried before the Hon. James Cobbs.
    The appellee in this case commenced suit by summons and complaint, on the 15th February, 1861, against Latón Sanders; and on the same day sued out process of garnishment against the appellant, as the debtor of said Sanders, The defendant having died pending the suit, (the record does not show at what time,) a scirefacias was issued to Obadiab Belcber, as bis administrator; and at tbe November term, 1866, a judgment was rendered against said administrator, for tbe amount of tbe plaintiff’s debt; but “tbe plea of insolvency being confessed,” as tbe judgment-entry recites, it was ordered tbat tbe judgment be certb fied to tbe probate court, and tbat no execution be issued on it. At tbe same term, tbe plaintiff asked for a judgment against tbe garnisbee on bis answer, previously filed, admitting an indebtedness to tbe defendant; while tbe garnisbee moved tbe court to discharge him, in consequence of tbe declaration of insolvency of- tbe defendant’s estate. Tbe court overruled tbe motion of tbe garnisbee, and rendered judgment against him, on bis-answer, for tbe amount of tbe plaintiff’s debt; to which the garnisbee excepted, and which be now assigns as error.
    J. R. John, for appellant.
    R. W. Cobb, contra.
    
   JUDGE, J.

Tbe effect of a decree of tbe probate court declaring an estate insolvent, i's to transfer to tbat court tbe exclusive jurisdiction of all claims against tbe estate, subject only to tbe provisions of tbe Code as to pending suits. Edwards v. Gibbs, 11 Ala. 292; Code, §§ 1859, 1860.

Any suit pending at tbe time of tbe declaration of insolvency, is sustained for tbe single purpose of a judicial ascertainment of tbe amount due, if anything, on tbe claim involved in tbe litigation; atid while a judgment may be rendered for tbe amount ascertained to be due, no execution can be issued on tbe judgment, but it must be certified to tbe proper probate court, for allowance as a claim against tbe estate. — Code, § 1860.

Such being tbe effect, under our legislation, of a declaration of insolvency, what becomes of a lien tbat may have been acquired in a suit pending at tbe time of tbe declaration, either by tbe levy of an attachment, or tbe service of a writ of garnishment ? Such liens are expressly created by section 2527 of tbe Code.

Goods or chattels attached may be replevied; and when replevied, if not debvered within thirty days after judgment against tbe defendant, it is tbe duty of tbe sheriff to return tbe replevin bond forfeited, and execution must issue tbereon, against tbe principal and sureties therein, for tbe amount of tbe judgment and costs. — Code, § 2538. But, if tbe defendant dies, and bis estate is declared insolvent, before tbe rendition of tbe judgment, no execution, as we have seen, can be issued tbereon. How, then, can this bond be forfeited, or tbe lien of tbe plaintiff enforced ? Tbe prohibition against the issue of an execution is, in effect, a denial of all power to tbe court in which tbe judgment was rendered, to take any remedial step for tbe enforcement of tbe ben. That court is restricted to tbe simple duty of certifying tbe judgment to tbe probate court, which then has exclusive jurisdiction of the case, for certain well-defined statutory purposes, and has not the power, by any process with which we are acquainted, to enforce tbe lien, if it continued to exist, but which, under tbe circumstances, is discharged.

A ben, acquired by tbe service of a garnishment, cannot, on principle, occupy a footing more favorable, than one acquired by tbe levy of an attachment. ' A judgment against a garnishee is dependent upon tbe judgment against tbe principal debtor. If tbe right does not exist to enforce tbe collection of tbe latter, it cannot exist to coerce tbe payment of tbe former. Tbe measure of tbe right to satisfaction of a judgment rendered against an estate, after a declaration of insolvency, is definitively fixed by tbe law, as well as tbe forum in which it is to be enforced; and, as in such case no execution can issue against tbe insolvent estate, so none can issue on an incidental judgment against a garnishee in tbe case, without sanctioning an effort to accomplish by indirection that which tbe law prohibits from direct accomplishment, viz., tbe satisfaction of tbe principal judgment by proceedings of tbe court in which it was rendered. There is no statutory provision authorizing tbe transfer of tbe lien to tbe probate court; and that court would be as much without jurisdiction to enforce such a lien, as it would be to enforce a lien acquired by tbe levy of an attachment.

Tbe lien acquired by tbe service of tbe garnishment, in the case before us, was inchoate and imperfect; and before it was perfected by the rendition of a judgment against tbe principal debtor, on which execution could issue, was intercepted by the declaration of insolvency of his estate, the effect of which was to abate the garnishment proceeding.

Our conclusion in the premises is sustained by the authority of numerous adjudications of this court, to the effect that a decree of insolvency destroys inchoate and imperfect liens, similar to that which appellee acquired. This doctrine has been too long the settled law of this State to be now disturbed. — Hale v. Cummings & Spyker, 3 Ala. 398; Fitzpatrick v. Edgar, 5 Ala. 503; Burke v. Jones, 13 Ala. 171; Langdon v. Raiford, 20 Ala. 538; Lamar v. Gunter, 39 Ala. Rep. 324.

The court below erred in not discharging the garnishee; and the judgment must, therefore, be reversed, and the cause remanded.

BYRD, J.

The Code gives a lien on the assets of a debtor, in the hands of a garnishee, upon the service of process of garnishment. If the estate of a debtor is declared insolvent, against whom' a suit was pending at his death, under the Code the suit is not abated, but proceeds to trial; and if the creditor procures a judgment, the Code requires the judgment to be certified to the probate court.

All the decisions referred to in the opinion of the court on the question involved in this case were made under a statute which abated the suit upon a declaration of insolvency ; and I concede the correctness of those adjudications, because it requires the rendition of a judgment to perfect the lien of the attachment or garnishment. Whenever the plaintiff obtains a judgment, the lien is perfected, and becomes a vested right; and in the leading case upon which the subsequent ones are based, the court (Goldthwaite, J., delivering the opinion) says of the lien : “It is inchoate and imperfect until a judgment' is rendered, for it is that alone which determines the claim on which the attachment rests to be just.” * * * “It is because the law declares that no suit shall he sustained after the estate is represented insolvent, that the lien is gone. — See Hale, adm'r &c. v. Cum mings & Spyker, 3 Ala. 400. This case fully sustains the position I take, that a creditor who sues out an attachment, and levies it upon property or assets of the debtor in the hands of a third person, obtains a lien on such property or assets, which, upon a judgment against the debtor, becomes a perfect lien, and a vested right, which is not defeated because the law requires the judgment to be certified to the probate court, if the estate of the debtor is declared insolvent before judgment, and that no execution can issue on the judgment.

The codifiers, and the legislature, saw the injustice that was worked to honest creditors who had done all the law required to obtain a hen, by the abatement of the suit; and therefore the law was changed by the Code, and the suit was allowed to proceed to judgment. It seems to me to be wrong to deprive a creditor of a legally acquired right by judicial construction or legislative action. Whether rights have vested under the statute law, the common law, or by contract, makes no difference. They are all equally sacred, and above the sphere of legislative power, and should be above that of the judicial or executive. My views on this subject are fully given in the case of Dockery v. McDowell, decided at the present term.

To illustrate : Suppose an attachment is levied on perishable property, and the debtor replevies it, and consumes it before his death; and afterward, before judgment, his estate is declared insolvent, and the suit proceeds to judgment, and is certified to the probate court; are the sureties on the replevin bond released from their liability because the debtor’s estate is insolvent. If the creditor cannot sue them on the replevin bond, when the property is not delivered within thirty days after judgment as required by law, certainly no one else can do so; and the creditor is defeated of his lien and rights without any negligence or fault on his part; and if the debtor had no other property at his death, the creditor will be wholly without remedy. Or, suppose perishable property is levied upon, and sold by the sheriff, and he has the proceeds at the time judgment is rendered; is the creditor to be deprived of his legally acquired and vested lien, by a declaration of insolvency? Certainly not, and tbe circuit court could order the application of the proceeds of sale to the payment of the judgment ; and if not sufficient, should order the balance certified to the probate court; or should apply the proceeds as a credit on the judgment, and hare it certified.

The Code gives an express lien on the assets in the hands of the garnishee, (Code, § 2527,) and although no execution can issue on the judgment against the administrator of the insolvent estate, yet that should not prevent the creditor from obtaining a judgment against the garnishee; and after collecting the money from him, the amount should be allowed by the probate court on the judgment; and if not sufficient to pay it, the balance of the judgment should be allowed by the probate court.

The law ordinarily favors the diligent, and never favors the deprivation of any suitor of a lawfully acquired right.

Many other views might be presented to maintain the position taken, but I shall not present them, nor refer to any other authorities than those cited in Dockery v. McDowell, supra, and Howard v. Bugbee, 24 How. 261.

I therefore dissent from the opinion of the court.  