Lockhart v. Johnson , 9 Ala. 223 ( 1846 )

COLLIER, C. J.

In Graves v. Cooper, 8 Ala. Rep. 811, it was held to be irregular to permit the defendant, when his debtor is summoned as a garnishee, to contest the answer of the latter, unless this is done at the term of the court when the answer is filed, or unless an order is then made, giving tipie for that purpose. After citing several of our previous adjudications, it is added, “ These decisions fully establish that whenever a garnishee submits to answer, or when the shit 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 defendanfm the attachment.” The sections of the statute Which provide for the contestation of the garnishee’s answer by the plaintiff, or defendant, are not materially variant, and* if the law be as stated, when controverted by the defendant, we think it clear that it should be administered vrith quite as much strictness as applied to the plaintiff. The same reasoning applies with equal force to each; and it would be quite as oppressive to the garnishee, to compel him to remain in court, from term to term, and the danger of surprise equally great, where his answer is contested by the one party or the other.

In this case, as well as in that cited, the garnishee moved his discharge at the next term after he had answered, and did no act indicating a willingness to join in the issue, and present the matters in controversy to the jury. There is, then, no admission upon the record, either express or implied, which takes from him the right of insisting upon the irregularity on error.

Several other points are raised by the bill of exceptions upon the deed to which the garnishee’s answer refers; but as the question considered is decisive of the case at bar, and there are other causes before us, which present-the points referred to, we will not now enter upon their examination.

We have but to add, that the judgment of the Circuit Court is reversed..