Buford v. Welborn , 6 Ala. 818 ( 1844 )

GOLDTHWAITE, J.

1. We think it entirely competent for a court to permit a garnishee to amend his answer whenever the justice of the case requires it. The permission to do so, is the exercise of a discretionary power, which is not the subject of review on error. In the present case, however, its exercise was quite proper, because the judgment admitted as the indebtedness by the former answer, had been reversed, and therefore, it became essential to the rights of the garnishee, to ascertain whether there was any debt due from him to the debtor, subject to attachment.

2. On the subject of garnishee’s answers, the practice under the several statutes is now well settled, that before there can be a judgment repdered, there must be a distinct admission of indebtedness to the person, as whose debtor he is summoned. [Fortune v. State Bank, 4 Ala. Rep. 385. and cases there cited.]— Here, the answer does not in our opinion contain such an admission; the money received by him belonging to the debtor, was only to be accounted for upon a final settlement. Whether this receipt would admit the interpretation, that ail open transactions in ■which the garnishee was involved as security or indorser for the debtor, was intended to be included, is a matter which we deem it unnecessary to determine, as it was entirely within the power of the plaintiff to have called on the garnishee in the examination for answers to such questions as he wished to ask respecting the nature of the debts which the garnishee claimed the right to set-off Or, if the answer was doubtful or unsatisfactory, he could have insisted upon an issue, to try the question of indebtedness upon making the affidavit required by the statute. [Clay’s Dig. 60, § 25.] It is not competent to the plaintiff when the opportunity is given him by law, of calling out direct and explicit an-? swers to all questions relative to the indebtedness, to ask the court for a judgment upon any other than a distinct admission of indebtedness at the time of service.

We think there is no such admission in this amended answer, and therefore, the court did not err in discharging the garnishee.

Judgment affirmed.