Marston v. Carr , 16 Ala. 325 ( 1849 )

COLLIER, C. J.

1. The Act of 1831, which authorises the Judge of a County Court, who is related to “ any of the parties” to a suit pending in his court, to transfer the same to the Circuit Court of the county, we think is a sufficient warrant for the order of transfer in this cause. But if the order was made without a legal warrant, yet as it was acquiesced in, and a trial had in the Circuit Court, the objection of the garnishee comes too late: Besides, can the objection be made upon writ of error — should not the garnishee have prayed a rescission of the order by mandamus ?

2. It is provided by the Act of 1833, that “ the defendant may, in all cases, show by competent testimony, that a garnishee is indebted to him in a greater amount than he is willing to admit on oathFmther, “ the plaintiff wishing to controvert the garnishee’s answer, may do so by making an oath, that he believes the same to be incorrect; whereupon, an issue shall be formed and tried as in other cases.” — Clay’s Dig. 60, §§ 24-25. 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 1he latter, unless this is done at the term of the court, when the answer is filed, or unless an order is then made, giving time for that purpose. It has been decided in a subsequent ease, that 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 we have stated it, when the answer is controverted by the defendant, it should be administered with the same- strictness as applied to the plaintiff. The same reasoning applies with equal force to each. Lockhart v. Johnson, 9 Ala. Rep. 223; see also McDaniel v. Reed, 12 Ala. Rep. 615; Twelves & Co. v. Lodano, 15 ib. 732. The bill of exceptions distinctly affirms, that at the term at which the garnishee filed his amended answer, the- plaintiff’s attorney filed an affidavit of its incorrectness. This was a sufficient initiation of a contest as provided for- by the statute-, and the cases cited do not require that the issue shall be made up (if the affidavit is filed in time,} previous to the- term when it is submitted to a jury for trial. The affidavit gives sufficient notice to the garnishee, prevents all surprise on his part, and the issue may be made up afterwards, under the direction of the court.

3. It appears that there was an issue, trial and verdict, upon the first answer, and that the verdict was set aside.. Whether this answer was contested in due time, even- if the-objection .epuld now be made, is wholly immaterial. By joining in the- issne and voluntarily going into the trial; the regularity of the proceedings was conceded. So, that whether we have reference to the issue upon the first or second answer; the garnishee- cannot object that the issue was not formed in proper time. The suggestion of the plaintiff found in the transcript affirms, that the garnishee had in his possession, at the service of the garnishment, “ real estate, land, personal estate, goods, chattels, effects and property of other description of William D. Primrose, and was indebted in the sum of ten thousand dollars to the said William D„ Primrose,, which said property and sum of money was, and is, properly subject to the payment of his demands,” &c. ■ It is unimportant what disposition was made of the suggestion, whether it was sustained or adjudged bad on demurrer or motion to strike out ;• the-judgment entry shows that the issue was framed so as to.-try the question of the garnishee’s indebtedness, and this is quite sufficient. Both the affidavit and suggestion (if _the latter be necessary,) deny the truth of the garnishee’s answer, and nothing more is essential to the regularity of the issue.

4. In Baker v. Moody 1 Ala. Rep. 315, the garnishee admitted that he had in his hands a certain sum of money received for the use. of the defendant in the judgment; that the latter had stated in his (garnishee’s) presence, the money was to go to D. D., but on what account garnishee did not know: Held, that it did not appear that D. D., had any title to the money, or that the defendant did not intend to pay it to him in discharge of a debt, and therefore, a judgment against the garnishee was correct. So it has been decided that a garnishee is not required to state the fact or validity of the assignment of a note be gave to the defendant; he may state that he has been notified by a third person that he' is the assignee; and it then rests with the plaintiff to contest the fact of the assignment by an issue under the statute, — Foster, Nostrand & Co. v. Walker, 2 Ala. Rep. 177; see also Fortune v. The State Bank, 4 ib. 385, in which it was said, that if the plaintiff desired to proceed further against the garnishee, he should contest his answer and submit an issue to the jury; FiMher, the-Act of 1840, “ to amend the law in relation ta garnishment”' requires a notice to be given to a person, who is shown by the answer to set up a claim to the debt or- property in respect to which the garnishment issued, by virtue of an assignment. (Clay’s Digest, 63, § 40.) This statute being beneficial in its provisions should receive a liberal construction, and embrace not only a transfer by writing or orally, but apply to ai cases where a third person is disclosed as the- proprietor of the debt or demand. In Evans v. Norman, 14 Ala. Rep. 662, this construction of the Act of 1840, was reasserted, and it was decided that where a garnishee disclosed the name of a third person as the endorsee of a note, the proceeds of which he had collected, it was not competent to render a judgment against the garnishee-,until the endorsee had been summoned or two notices had been returned “ not found1.” The same liberal interpretation of the Act was maintained in Moore v. Jones, 13 Ala. Rep. 296, and it was added that within its spirit and meaning, one may be said to be the transferee- of a debt, whom the garnishee states claims it as. his own, and he is unable to determine whether such person or the plaintiff’s, debtor is entitled to receive it. In the case at bar, the garnishee states that he has been informed that one-third of the property and money to which he refers in his answer, is going to Wm. D. Primrose, or the heirs of Simon Favre, whose name he discloses ;'tljat Primrose has no interest or claim in, or to the same, except as the agent of the heirs of Favre. Whether this information is true or false, garnishee cannot state. The garnishee is not aware that he is indebted to Primrose, or that he has any of his effects in his hands, or under his control. Here is no distinct admission of indebtedness to the defendant in the judgment, nor can it be predicated of the facts disclosed. True the defendant admits that he has in his possession some real pioperty, promissory notes, and it may be a small sum of money; but he doe’s not know that Primrose has any interest in it — ‘in fact he has béen informed that he has none, except as the agent of Favre’s heirs. Upon this answer, it is clear that no judgment could be rendered against the garnishee. Within the equity of the statute of 1840, the heirs of Favre must be regarded as assignees, and should have been summoned to contest, with the plaintiff Ihe indebtedness of the garnishee. The cases cited are so conclusive upon the point that it is unnecessary to add more.

6. Primrose was, prima facie at least, an incompetent witness. The case of Scott, Slough & Co. v. Stallsworth, 12 Ala. Rep. 25, is decisive of this question, and is not in any manner affected by Dye v. Easley, 14 Ala. Rep. 158.

7. The second charge which the garnishee prayed was within the issue, appropriate to the facts, and should have been given. It merely asserted that if the garnishee had in his possession, promissory notes, or was the depository of the legal title to real estate, to the proceeds of both of which, the defendant in the judgment would be entitled when realised, no judgment could be rendered against the garnishee for the collected notes, or the unsold land. See Smith v. Chapman & Brother, 6 Port. Rep. 365; Jones v. Norris 2 Ala. Rep. 526; Blair v. Rhodes, 5 ib. 648, and many other cases.

It can hardly be necessary to enquire whether the garnishee is chargeable with interest upon the sum, which the jury have affirmed he is’ indebted to the defendant in the judgment. Judging from the facts, we should think this question will not be likely to arise upon a future trial; see, however, Kirkman, et al. v. Vanlier, 7 Ala. 317; Boyd v. Gilchrist, 15 Ala. 849.

We will not stop to consider the remaining charges prayed, as attention to the facts and points we have determined, will most probably prevent the same questions from being again raised. We have but to declare that the judgment must be reversed, and the cause remanded.