Myatt v. Lockhart , 9 Ala. 91 ( 1846 )

GOLDTHWAITE, J.

1. The 25th section of the attachment act directs, that “ the plaintiff wishing to controvert the garnishee’s answer, may do so by making oath that he believes the same to be incorrect, whereupon an issue shall be formed, and tried as in other cases. [Dig. 60, $ 25.] It is supposed by the garnishees, that this imposes on the plaintiff the onus of disproving the facts asserted by the answer ; but it seems clear to us that such is not the intention of the act, because, instead of being tried as other cases, this issue would often entirely depend on the garnishee’s oath. The 24th and 40th sections present examples of similar collateral issues, and the object of the legislature seems to have been to place the plaintiff in attachment precisely in the same condition with respect to the person he is pursuing as garnishee, as the debtor himself would be if he was the plaintiff. The garnishee is permitted in the first instance, to state his case on oath, either generally or specially, if he chooses to do so, and this is conclusive until the plaintiff’ denies its correctness. The defendant in the attachment is allowed the same privilege. When, however, this oath is made by either party, an .issue is required to be made up. In Graves v. Cooper, 8 Ala. Rep. 811, we considered what should be the form of this issue, when the controversy is at the instance of the defendant. When it is at the instance of the plaintiff, the issue of necessity is confined to a general allegation, that the garnishee is indebted to the defendant in attachment, either generally or in a larger sum than admitted by his answer. The proof to charge the garnishee is entirely independent of the answer, and if that is introduced by the plaintiff, it has the effect only of an admission of the party, and is governed by the same rules as any other admission. [Cowan & Hill’s Notes, 926, et se.] But it never can be introduced as evidence by the garnishee, for the same reason that excludes all admissions as. evidence for the party making them. If the rule was otherwise, it would always be impossible to controvert the answer of the garnishee, when he asserted a payment to the defendant in attachment.

2. This conclusion shows that the court was in error in the charge given, as well as those refused, with reference to the issue as formed. But it will be seen, the issue itself is-irregular, in selecting a part only of the answer, as the matter intended to be controverted. In our opinion, the only proper issue, is one of indebtedness, vel non.

3. The evidence introduced by the plaintiff is not subject to the same exception as the issue tendered, because it attempted to show an actual indebtedness in the garnishees, entirely independent of their answer. It, in effect, established that the money received by them from the sheriff, "was the money of the defendants in attachment; after which it remained with them to show, that it equitably, or- legally, was the money of some other person. If the evidence had stopped short of the admission by Lockhart, that he was not entitled to the money, the record showing the suit for his use, would possibly have discharged the garnishees, as the effect of thus bringing the suit, is to give the assent of the nominal party, that the money shall be so appropriated. [Brown v. Foster, 4 Ala. Rep. 282.] But he having repudiated the use by his own declaration, the money was in the hands of the attorneys, as that of the defendants in the attachment.

4. It is supposed the judgment ought not to be disturbed, inasmuch as the answer of Massey is entitled to be considered as the transferee of the debt, and as such entitled to litigate with the plaintiffs the validity of the transfer, under the 40th section of the attachment law. This would be entirely proper, if the evidence before the jury had shown such a transfer; but it did not, and the answer being controverted, no such transfer as is there alledged to Dearing, and after-wards by him to Massey, can affect the cause as now presented. We have already said, if such a fact had been declared, it would have terminated the controversy; as, in that event, Massey would be entitled to notice as transferee. Here he is considered only as the garnishee, and in the aspect of a partner with Lockhart. The plaintiffs have elected to proceed against them as partners, and it is quite probable they could not be permitted to have a several judgment against both, or either. See Travis v. Tartt, 8 Ala. Rep. 574.

Judgment reversed and remanded-.

iD'p’ Decided at June term, 1845, and omitted by mistake.