ARK.] THORN & ROBINS VS. WOODRUFF, ET AL. 55 THORN & ROBINS VS. WOODRUFF, AND RUTHERFDIID, AS ADM'It. • A garnishment is a suit with plaintiffs and defendants, both of whom have a day in court, If two defendants are joined in the same garnishment, it is error, unless there be sufficient allegations In the writ, that their liability or indebtedness . was joint. as. partnership debtors, joint debtors, &c. if they are intended to be made several and distinct debtors, there must be several and distinct writs, allegations, answers, &c. -Fxecutors and administrators are not, as such, liable to g arnishment. It dkt orb,: the course of *administration. THIS was a proceeding by garnishment, determined in the Pulaski Circuit Court, in September, 1842, before the Hon. JOHN CLEN-DENIN, one of the .circuit judges. Thorn & Robins sued out a. writ, reciting that, whereas, they, in the Circuit CoUrt of Pulaski county, on a given day, obtained a judgment against Edward Cole, for a certain debt, damages, and costs, which_ still remained unsatisfied; and that, whereas, it was alleged, by said plaintiffs, that they have reason tc believe that William E. Woodruff and Samuel M. Rutherford, as es-ecutors of George H. Burnett, deceased, have, in their bands and pof, 0
56 MORN & ROBINS vs. WOODNUFF ET AL. [5 session, goods and chattels, moneys, rights, and credits, belonging to said Thorn & Robins, copartners, as aforesaid : "now, therefore, you are hereby commanded to summon the said William E. Woodruff and Samuel M.. Rutherford, as executors of George H. Burnett, deceased, if they be found within your bailiwick, to appear at, &c., then and there to answer what goods and chattels, moneys, credits, and eff:c's, they may have in their hands or possession, belonging to said defendant, Edward Cole, to satisfy the judgment , aforesaid, and also to answer interrogatories, Sze.' On the return of the writ, Thorn & Robins filed allegations averring that one Woodruff, of said garnishees, at the time of the service of the writ in this case, and afterwards, &c., averring effects and indebtedness by Woodruff to Cole, and exhibited interrogatories to Woodruff, as an individual. At the same time, they filed allegations, alleging that "Samuel M. Rutherford, as executor of George H. Burnett, deceased, had," &e., averring effects and indebtedness, as such executor. Woodruff answers in his own right, denying any effects or indebtedness; and his answer being uneontradicted, the was, of course, discharged. Rutherford came, "as executor of Burnett, and moved to quash the writ: 1st, because the writ of gar-nishment is joint, and not several, as to said Woodruff, and this garnishee, as executor; 2d, that the said Rutherford, as executor, js not liable, by law,.to be summoned, as a garnishee. The Court sustained the motion, and quashed the writ, and the case came up. Hempstead & Johnson, for plaintiff in error. If Rutherford and . Woodruff were improperly included in the writ of garnishMent, or there was any defect, irregularity, cr informalit y in the writ, it was bound to be plead in abatement, according to the doctrine in ne case of Didier vs. Galloway, 3 Ark. Rep. 501, and Reimer vs. Reid, 3 Ark. Rep. 339, and could not be taken advantage of by a mot:on to quash. If the objection were apparent on the fade of the writ, the plea would require no affidavit; but still, the objection must be made by a formal plea. Rev. St., p. 57, sec. 1. But even if the joinder of Woodruff and Rutherford has been properly brought before the Court, by the latter, he could have de-
ARK.] T- ITORN & ROBINS VS. WOODRUFF ET AL. 57 rivFd no advantage from it, because a garnishment is of the nature of a suit, although no formal pleadings are required; and it is indisputable, that any number of perSons may be made defendants in an action, and of coarse included in the writ. They may sever in pleading. One may plead in abatement, another in bar, and another may demur, at one and the same time; so that the rights of one cannot be at all prejudiced by the absence of right in another. The joinder of several is not only not objectionable, but commendable, on account of lessening the costs. Rutherford was appropriately described as executor of Burnett. Separate interrogatories were filed against Wood-ruff separate interrogatories against Rutherford, in his representative cha racter. The testator would have been subject to the operation of the writ of garnishment. Bence, it must follow, that the executor who represents h i i,• sta nds in the same predicament. The s:atute or garnishment does not exclude or exempt any class of persons; nor is it believed any exemption can be found in any part • of the code. Rev. St. 424. On the contrary, express provisions are made for actions brought against an executor or administrator, after the testator or intestate's death, and treating such actions as demands legal.ly exhibited against the estate, to be classed accordingly. Rev. St. 81. Ashley & Watkins, contra. By the Court, PAscHAL, J. The record is *very defective and inconsistent. The writ is against both of the parties, "as executors." The allegations and interrogatories are against Woodruff in his own right, and against Rutherford "as eXecutor of Burnett." Woodruff answers, in response . to the allegations, and Rutherford moves to quash the writ, because of the inconsistent joinder, and because an executor is not liable to answer. The parties, byjoining in error, admit the . correctness of the record; and this Court are at some loss upon what state of facts to adjudicate. Although a garnishment is sui generis, yet it is a suit. with plaintiffs and defendants, both of whom have a da y in court. And if two de-
58 THORN' ROBINS v.5. WOODRUFF ET AL. fendants aTe joined in the same garnishment, it is error, unless there be sufficient allegations in the writ, that their liability or indebtedness was joint, as partnership debtors, or joint debtors, &c. But if they are intended to he made several and distinct debtors, then there must be several and distinct writs, several and distinct allegations, answers, &c.; because, each defendant must depend upon his own merits, and must be entitled to the benefit of the judgment against him, for his own prWeetion. In other words, defendants must not be joined, as ;1 . arnisliees, unless, in consequence of their joint interests, they could he joined in a sal:- at law, for the recovery of the demand. This brings us . to the cOnsideratien of the main question, as pre-sonted thud is: is an executor or administrator liable to be garnisheed, in his fiduciary character? The Supreme Court of Delaware, under a similar statute to our • own, except that the clause or garnishment was in the writ of /ten; facias to such debtors . as are named, have said, "the act of assembly settles !he priOrity of payment of debts, in the administration of assets, and it will not do to allow it to be disturbed in thi; way. By allowing the debtors of an estate to be garnisheed, the assets might be divested from their lawful course of application. Thus, funds applicable to judgment debts might be arrested and applied to simple contract debts. • Neither an administrator, therefore, nor a debtor of the estate, ean be at:ached or summoned, as a garnishee." This is the invariable decision. Marvell et al., garnishees,of Lyons, ader of Honstm, •2 Harri;:glon. 349. The Supren:e Court of the State of Maine, after reviewing the cases. Brooks vs. Cook,. 8 Mass. Rep., 276; Cheek and others vs. Brewer and trustee. 7 Mass. 259 say: "The reason of the law, as laid down in case of Brooks vs. Cook and trustee, is, that it is the duty of an administrator to account, with the judge of the probate, for all the property in his possession, belonging to the estate. His bond is given to secure all concerned against losses occasioned by his unfaithfulness or negligence. If any of the conduct of the administrator. in this case, has been irregular, he Winds responsible on his bond." See, also, Johnson. ex dem., Mv:ray et al. vs. Walsworth. 1 .1oh;•.wm's Cases. 372. And in Hvrd & Seld n.admr's of
AuK.] 59 . Jesse Hurd, dee'd, 9 Wend. 465, the Supreme Court. of New York, say: "An attachment does not . lie against an administrator, for a demand against his intestate, under the act against absconding, concealed, and non-resident debtors." The reasoning, in this case, is very clear. The reasoning, in all these cases; applies to cases of executors and administrators, under our system of laws for settling the esta:es of in-testates, witth great force. To subject executors or administrators to this process , of garnishment, might destroy the whole operation and intention of our law of administrations. We are, therefore, of opinion, that an executor or administrator, as such, is not subject to garnish-ment. judgment affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.