Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-09-03
LAW OF GARNISHMENT.
Authorities Upon the subject.
Opinion of Justice Baskette.


ion by Justice Baskette, elected in the
case of D. A. Cole vs. w. w. Farmer, az
regards the law of punishment, will bt
read, we conceive, with very general in
terest, especially at this time, when the
subject is daily discussed by many of oul
citizens:
d. A Cole vs. W. W. Farmer.
In this cause the Suspension Bridge
Company was summoned as garnishee or
the 29th day of July, 1870, to appear and
answer the same on the 9th day of Au.
gust thereafter On that day the Compa.
ny appeared by its Secretary and Treas
urer, A w. Butler, and answered that the
Company owed the defendant, Farmer,
nothing at the time of punishment, hay-
ing paid him on the 7th day of July
$62. so for his services for the month of
July. That after the service Of garaish-
ment he was directed by the Company TO
pay the defendant the sum of $62. 80, to
secure his services for the month of Au-
gust, which he did on the LIST day of Au-
gust. He further states the Company had
no property, debts or effects In its pos
session, or under its control, belonging to
the defendant at the time of the serving
of the notice, nor had at the time of an
swering, nor had at any time between the
date of service and the time of answering
Upon this answer the plaintiff insists
that he is entitled to a judgment against
the Bridge Company for the amount paid
by the company on the 1st day of August,
and places his demand upon section 8, 08S
of the Code of Tennessee, which leads as
follows:
''3,OS8-The gsrnishee may be re-
quired to answer on oath:
81. Whether he is, or was at the time
of the garnishment, indebted to the de
PENDANT; if so, how and to what amount.
a. Whether be had in his possession,
or under his control, any property, debts,
or effects, belonging to the defendant at
the time of serving notice, or has at the
time of answering, or has had at any time
between the date of service and the time
of answering, and, if so, the kind and
amount"
The object of gsrnishment is to Sc
cure the debtors effects in the hands of
those indebted to him, or having possess
sion of the same. The proceeding is in
the nature of sequestrstion of the debt
or's effects-it is an attachment and in
junction, attaching the Indebtedness and
effects, and enjoining the payment of the
debt and the delivery of the property; and
the moment the garnishee receives the
notice, whatever he is indebted at the
time is levied upon, and he is Wdr7led,
that is, enjoined, not to pay; if SO he
does it at his peril.
TIKI 4I,,v ,aFr, as,fo ,ehr
let us next inquire how far it extends and
what Indebtedness it reaches.
There must exist at the time of garnish-
ment an Indebtedness, or else there is
nothing attached-it has failed, there is
nothing upon which to levy the execu-
tioL. 1t can only reach the Indebtedness
in esse, an Indebtedness then existing, and
cannot reach or anticipate an indebted
ness in future. The garnishment being
in the nature of an attachment and in-
junction, no one will insist that it can
reach debt that may be dependent upon
a contingency-the future contract of the
judgment debtor Such a contingency
cannot be reached by attachment, and
neither can the payment of an anticipated
indebtedness be enioined. 1t is only a
utUL III Esott dtIEdul NICdbCus buDSloblilB dl
the time, due or TO become due; but a
debt that may be in future, cannot be
levied upon by attachment, nor can the
payment of it be enioined. Then, l con-
clude that neither can such an indebted
ness be reached by execution and gsrnish-
ment, for the reason already stated, that
it must be debt in esse, not in future.
This is the operation of law and the in
tention of the Legislature.
The statutory provision before the code
TACT 1879 is in the following language:
''To answer upon oath what he is in
debted TO the defendant at the time of
serving the garnishment." The Supreme
Court have held that the debtor when
garnished is to answer what he is indebted
to the defendant against whom the at
tachment or execution is issued, which
means at the time of summons; see s
Yer. 113. In this case the garnishee an
swered that he did not owe the judgment
debtor anything that was due at the time
of garnishment, but that he owed $1,000,
which was to become due the first of
January thereafter, and that before that
time he settled with the judgment debtor
and paid him the debt. The court held
that 'there being nothing due at.the time
of the summons" that the garnishee could
not be held liable; that there must be an
Indebtedness due and owing at the time of
garnishment, and that the statute must be
taken with striCkness. Apply this doc
trine to the Code, sec. 3,0SS, which is
whether he is indebted or was indebted
at the time of garnishment. The
latter part of the sentence being
only explanatory, of the first part,
it may be read, whether he is indebted at
the time of garnishment, or was indebted
at the time of gaTnishment. The relation
of creditor and debtor must exist at the
time of service, was certainly the inten
ton of the act. The old statute is copied
in the Code, with the explanatory sent
enCe, cor was indebted at the time of
garnishment.n Then the conclusion, with
the above decision before us, is that there
must be debt in esSe going 10 the judg
ment debtor, and no other Indebtedness
subsequent to the service can be at
tached, and neither can its payment
be enjOined before it is created.
That is TO say, that a laborer's wages
cannot be anticipated before the labor is
performed, and the debt in existence.
Such theory is in COntravention of the
system of our whole practice and judicial
proceedings. The Secretary having an
swered-and you are bound by the an
swer-that the company was not in
debted at the time of garnishment, there
was nothing in the hands of the company
that could be sequestrated, or applied to
the satisfaction of the execution; there
was noting upon which the levy could be
made, and the garnishment could not at