Bostwick v. Beach , 18 Ala. 80 ( 1850 )

CHILTON, J.

The plaintiffs in error were summoned as garnishees to answer what they were indebted to Lyman LewisTiie garnishment was executed upon them the 3d March 1848, requiring them to appear and answer at the next succeeding term. At the spring term of the court, 1848, to which the summons of garnishment was returnable, no entry appears of record to have been made as to any proceedings against the garnisheps. At the fall term 1848, an entry was made, which recites-that “ the plaintiffs came and moved the court for judgment against Bostwick & Kirkland on their answer as garnishees, and, it being shown to the satisfaction of the court, that the said Beach sued out an attachment from the office of Joel A. Roberts, a justice of the peace of Mobile county, on the 3d day of March 1848, returnable to the then next term of the Circuit Court of Mobile county, upon which writ of attachment such proceedings were had in said Circuit Court, that on the 27th December 1S4S, the said Beach recovered a judgment against the said Lyman Lewis, for the sum of $325 T5/T and costs of suit; and it being further shown that the said Bostwick and Kirkland were summoned by the sheriff of Mobile county on the third day of March 1S48, to answer at the then next term of the said Circuit Court, as to what amount they were indebted to the said Lyman Lewis at the time of the service of said garnishment, whereupon, during the said term of the said Circuit Court, the said Bostwick and Kirkland made their answer in open court, setting forth that they had given their promissory note in writing to the said Lewis, for the sum of $653 T\\, dated the 7th Feb. 1S48, and payable six months after date, which amount they still owe to him: upon which said answer the said Beach moved for judgment, which motion was then refused by the court, and the said motion was continued by the court to this term; and the said Bostwick and Kirkland having failed to make any further answer, it is considered by the court that the said William Beach do recover,” &c.

It is insisted that as the record shows the court overruled the motion for judgment made at the previous term, that this determination of the court is conclusive upon the plaintiff in attachment, and operates to discharge the garnishees. We do not think this a proper construction of the recitals in the judgment entry. No judgment had been rendered against the defendant in the attachment, and until such judgment was rendered, none could properly have been rendered against the garnishees.— Gains v. Bierne & McMahan, 3 Ala. 114. When, therefore, the motion for judgment was made at the term to which the garnishees were summoned, the court responded that the motion should be disallowed, or as the recital has it, “ overruled,” but continued. The evident meaning of which is, that it was disallowed then, but continued until the plaintiff in attachment should obtain his judgment and the indebtedness of the garnishees should fall due. Upon any other construction, the entry would be contradictory and absurd.

But it is objected that there is no sufficient evidence that the garnishees answered, or what that answer was. This objection cannot be sustained. The entry sets forth that they answered, admitting an indebtedness at a previous term, and sets forth particularly the character of such indebtedness. Now although the statute seems to contemplate that the garnishees should anawer orally, except when interrogatories are propounded under the recent statute, (when they may answer orally by consent, Dig. 63, § 44,) yet they may answer in writing, and such is the usual practice. But their answer, whether verbally or in writing,' is no pari of the record, unless so made by a bill of exceptions, or by .recitals in the judgment entry. — Gains v. Bierne, supra; Saunders v. Camp, 6 Ala. 74. It is not necessary, therefore, to sustain the judgment, that the answer of the garnishees should appear in full in the record. It is sufficient that they have been returned summoned by the proper officer as garnishees, that a judgment has been rendered against the defendant in the attachment to whom they are indebted, and that they admit an indebtedness to the defendant in the attachment, which he could recover against them in an action of debt, or indebitatus assumpsit. Long v. Clements, 9 Ala. 422; Harrell v. Whitman, at the present term; McGehee v. Walke, 15 ib. 183. It is very clear that the recitals in this judgment are sufficient to sustain it.

But it is insisted these recitals were made in the absence of the garnishees, and that therefore they should not be bound by them. Several decisions of this court show that the garnishee is not discharged by the omission to proceed against him at the first term to which he is summoned. In Robison v. Starr, 3 Stew. R. 90, it was held that the omission to take judgment misi against him at the first term, there being no judgment against the defendant in the attachment, did not discharge him. So, in Gains v. Bierne, supra, a judgment was sustained upon an answer made and filed at a subsequent term — see also, Leigh v. Smith, 5 Ala. 583; Graves v. Cooper, 8 ib. 814; and Lockhart v. Johnson, 9 ib. 224. These several cases fully sustain the position, that “ whenever a garnishee submits to answer, or when the suit is not terminated by judgment against the defendant in attachment, the garnishee continues before the court, for the purpose of receiving the judgment upon hi§ answer.” — 9 Ala. 224; 8 ib. 814. The garnishees were then properly before the court, in legal contemplation ; the entry recites enough to show the judgment against them was properly rendered; and we have but to add, that it must be affirmed.