Grates v. Cooper , 8 Ala. 811 ( 1845 )

GOLDTHWAITE, J.

1. A preliminary question is raised in this case, whether the Court could allow the defendant in execution to contest the indebtedness of the garnishee, to a greater amount than admitted by his answer at a term subsequent to that when the answer was received and filed. At first view, we were inclined to suppose this point must be considered as waived, from the circumstance that the garnishee appeared by attorney ; but we conclude this appearance must be referred to the matter which he was bound to appear to, and not to an irregular proceeding, in which he refused to join. It was held in Robinson v. Starr, (3 Stew. 90,) that a garnishee was not necessarily discharged by the omission to take a judgment ni. si. at the return term, no judgment having then been rendered against the defendant in attachment. And in Gaines v. Beirne, (3 Ala. Rep. 114,) a judgment against a garnishee at a subsequent term, was sustained upon his answer made and filed at a former term. In Leigh v. Smith, [5 Ib. 583,] a judgment entered nunc pro tunc against the garnishee, several terms after his answer, was held to be regular. These decisions fully establish, that whenever a garnishee submits to answer, or when the suit is not terminated by a judgment against the defendant in attachment, the garnishee continues before the Court for the purpose of receiving the judgment upon his' answer. But this we conceive is materially different from considering him as before the Court for the purpose of contesting his answer, whether that is done by the plaintiff or the defendant in the attachment.

In the present case the garnishee, appeared, and with the consent of the plaintiff in the proceedings, filed his answer in writing, at the Spring term, 1842, and no order was then taken for the allowance of further time to contest it, either on the part of the creditor or of the debtor. At the Fall term, 1843, the debtor corporation -was allowed to suggest that the garnishee was indebted to it in a larger sum than he was willing to admit on oath, and it was prayed they might be permitted to show the same by competent testimony. The garnishee declined to make any plea or reply, and no inference can be drawn that he assented to this proceeding, from the fact that he was represented by counsel before the Court; because he was there for the purpose, if necessary, of receiving a judgment on his answer.

For this reason we consider the judgment entirely erroneous* and decline to enter upon the consideration of the more important questions which grew out of the charge of the Court.

2. As the practice is quite unsettled on the peculiar statute under which this proceeding was attempted, it is proper to state how it should be. The difficulty of giving the proper effect to this statute was felt in Cameron v.-Stollenwerck, [6 Ala. Rep. 704,] but we then declined its consideration.

The 24th section of the general attachment law provides, that the defendant may, in all cases, shew, by competent testimony,, that a garnishee is indebted to him in a greater amount than he is willing to admit on oath, but there is no mode pointed out by which the cause is to proceed, when the .defendant chooses to avail himself of this privilege. We think other parts of the statute furnish analogies which must govern the proceedings in this. Thus, under the 25th section, the same privilege is- given to the plaintiff, but he is required to make oath that he believes the answer to be incorrect; and upon making this oath an issue is to be formed and tried as- in other cases. [Clay’s Dig. § 24, 2'5.] The 40th section- of the same act provides, in the same defective manner, for a contest between the creditor and the transferee of the debt owed in the first instance to the debtor, when the garnishee assumes that he has been notified of its transfer. And in Goodwin v. Brooks, (6 Ala. Rep. 836,) we considered that it was the business of the plaintiff to proceed against the party, after appearance, by an allegation that the transfer or assignment to him was invalid. This case, and the practice which prevails under other sections of the act, seem to require that the defendant in attachment, when he seeks to controvert the answer, should do it in the same manner as the plaintiff, by filing an oath that he believes the answer to be incorrect. Beyond this, as the mode and manner of the garnishee’s indebtedness must be known to his meditor, the suggestion of this indebtedness should be as ample as a declaration in ordinary cases, and would be controverted by plea of the garnishee. The issue, thus formed, is to be tried as in other suits, but the judgment, if for the creditor, will be of condemnation to the plaintiff in the attachment. As to costs, &c. we purposely omit to construe the statute until some case arises upon it.

As there has been no attempt at conformity with what we consider the proper practice, the judgment must be reversed, and the cause remanded, that such judgment may be rendered on the answer of the garnishee as is proper.

Reversed and remanded.