Wicks v. Branch Bank at Mobile , 12 Ala. 594 ( 1847 )

COLLIER, C. J.

What has been called, in argument, the first and second answer of the garnishee, cannot be separated, but must be considered together. The first is nothing more than the answer made without interrogation upon the service of garnishment; the second is the answer of the garnishee to interrogatories afterwards propounded to the bank, which specially refer to the answer on file, recite it in part, and call for a more particular disclosure. A judgment ivas rendered, upon the coming in of these answers, stating that the garnishee had denied an indebtedness to the defendant in execution, and rendering a judgment against the plaintiff for costs. At a subsequent term this entry was corrected nunc pro tunc, so as to make it appear that the garnishee was discharged on the answer on file, dated the 20th May, 1845; this appearing to be the date of the answers to the special interrogatories. This, we think, is quite sufficient, to make all the answers referred, a part of the record ; and it is competent to look to them, in determining the propriety of the de-cisión of the circuit court. [3 Ala. Rep. 114; 5 Ala. Rep. 583.]

It is perfectly clear that the answer of the garnishee does not admit a present indebtedness to Káue, or that it holds a sum of money to which he is entitled, or which would be paid to him on demand. The answer, it is true, admits that the bank is the depository of sixty-five dollars, the amount which the State owes him as a commissioner to examine the affairs of the bank ; but this sum the garnishee has been informed, is embraced in the schedule rendered by Kane as a bankrupt, and under the decree in bankruptcy, has been purchased by C. A. Marston. Whether the information of the garnishee on this point, was correct, could not, in the condition of the record, have been inquired into in the circuit court. It was enough that the answer did not admit a debt to Kane, to have authorized the discharge of the garnishee. The case of Foster, Nostrand & Co. v. Walker, 2 Ala. Rep. 177, is directly in point, and is supported by many previous and subsequent adjudications. It was there held, that where the garnishee answers he has had notice of the assignment of the debt sought to be condemned, it devolves upon the plaintiff to contest the fact of the transfer, by tendering an issue as provided by the statute ; and this although the garnishee does not affirm the fact or validity of such assignment. If an issue is not thus proposed, the garnishee must be discharged.

The bank was indebted to Kane, or held funds to which .he was entitled, for services rendered the State in a public capacity. Can money due, under such circumstances, be condemned under process of garnishment ? We incline to think not. If it could, then would it not be allowable for the bank to retain it in satisfaction of the debt due it from Kane. It is unnecessary to consider these questions further, for we have seen that the answer upon the other point considered, supports the decision of the circuit court. The judgment is consequently affirmed.