Smoot v. Eslava , 23 Ala. 659 ( 1853 )

GOLDTHWAI'JfiE, J.

It has repeatedly been held by this court, that a payment by a garnishee of a judgment rendered against him as such, will protect him against a suit upon the original claim.—Duncan v. Ware, 5 S. & P. 119; Cook v. Field, 3 Ala. 53; Mills v. Stewart, 12 ib. 90. In the present case, however, the object was to take the case out of this rule, by showing that one of the garnishees did not, in his answer, disclose the fact that the note in which he was indebted had been transferred to the person who afterwards sued apon it, such fact being within his knowledge at the time he answered. Unquestionably, if neither of the answers had shown that Roberts claimed an interest in the note, and he not had an opportunity of asserting his right thereto, the garnishees, if advised of the transfer at the time of their answer, would not have been discharged from their liability to the real owner by the payment of the judgment rendered against them.—Rich v. Colvin, 3 Por. 224; Foster v. White, 9 ib. 221.

But in the present ease, the answer of Ketchum shows that Roberts claimed an interest in the debt, and as he was duly and legally notified that his right as transferree would be contested, he had the oppportunity of asserting that right; of this he did not avail himself, and his failure to appear, when taken in connection with the judgment rendered by the court, estops him from setting up any claim for the note against the garnishees who were parties to the same proceeding.

It is obvious from what we have said,-that the evidence on the part of the plaintiffs below, showing that Roberts was the bona fide transferree of the note in question, as well as that which tended to prove that Smoot knew that such was the fact, at the time of his answer, was irrelevant. As, however, the record shows that this evidence was offered in connection with the note sued on, which was legal testimony, and the objection was taken to the whole evidence, without distinguishing between the legal and illegal, it was not error in the court to overrule it.—Murrah v. The Bank, 20 Ala. 392.

But in relation to the evidence which proved, that, after the garnishees had paid the amount of the judgment to the clerk of the court in which it was rendered, he immediately paid it back to one of them, as the attorney of the plaintiffs in the judgment, it was irrelevant; and as the objection to this testimony was properly taken, it should have been sustained by the court.

For this error the judgment is reversed, and the cause remanded.