McDaniel v. Reed , 12 Ala. 615 ( 1847 )

COLLIER, C. J.

In Graves v. Cooper, 8 Ala. Rep. 811, it was decided, that the defendant whose debtor is summoned as a garnishee, will not be permitted to contest the garnishee’s answer, unless it is done at the term when the an--swer is filed. And in Lockhart v. Johnson, 9 Ala. Rep. 223, it was said, that when a garnishee submits to answer, he is considered as continuing before the court, for the purpose of receiving its judgment; but if the cause is continued generally by the court as to him, he cannot be compelled to join in an issue tendered to his answer, either by the plaintiff, or defendant, in the principal suit; and if an issue then tendered for the first time] is made up and found against him, the judgment thereon will be reversed on error, if there is no admission upon the record, either express or implied, which-takes from him the right of insisting upon the irregularity.

These cases very conclusively show, that it was not incumbent upon the garnishee to submit to the court a distinct motion for his discharge — it is enough that he has made an answer to which there is no objection ; if this has been done, and he has made no admission, expressly or by implication, to estop him, he may object to submitting an issue to a party to try its truth at a subsequent term. In the case at bar, the garnishee, by his answer, prays his discharge. The record does not show any waiver of his privilege, and the continuance by the court, or at the plaintiff’s instance, cannot have that effect. The circuit court then, should not have compelled the garnishee to join in the defence.

The fact that the jury ascertained the extent of the garnishee’s indebtedness to the judgment debtor, will not entitle the plaintiff to recover of the garnishee a larger sum than the amount of the judgment, with interest and costs. But the error in this particular does not authorize a reversal of the judgment — it was competent for the court below to have corrected it, and this court, in a proper case, could order the correction to be made at the costs of the plaintiff in error. [Ansley v. Pearson, et al. 8 Ala. R. 431.]

What has been said sufficiently indicates the error of the 'circuit court, and the judgment is consequently reversed.