Montgomery & Eufaula Rail Road v. Hartwell , 43 Ala. 508 ( 1869 )

PETERS, J.

The record shows that the appellee, Hartwell, sued Spratt & Go., in the city court of Montgomery, in this State, by summons and complaint, in 1867, and at the same time sued out a garnishment against the Montgomery & Eufaula Railroad Company, under the provisions of the act, entitled “ An act to amend § 2471 of the Code,” approved February 5, 1858, which was made returnable at the same time the summons and complaint is returnable in the original case against Spratt & Co. This garnishment is returned and indorsed by the sheriff: “ Served on the Montgomery & Eufaula Railroad Company, the garnishee, by leaving a copy of this garnishment with Lewis Owen, president of said road.” — Pamphlet Acts, 1857-58, p. 36, No. 34.

The railroad company failed to answer said garnishment, at the return term of the court to which the same was made returnable, and a judgment nisi was rendered by the court against said railroad company, as such garnishee, for the sum of two hundred and ninety 30-100 dollars, with interest from the 12th day of October, 1867, and costs, together with the costs of the garnishment. It appears that the sum above named, was the amount of the judgment obtained by Hartwell against Spratt & Co., in said original suit, which was rendered on the 12th day of October, 1867, and the costs were the costs of said original suit. Notice of this judgment nisi was regularly issued by the clerk of said city court, and served on said railroad company, and returned in the following words : “ Executed by leaving a copy of the within with Lewis Owen, president of the Montgomery & Eufaula Railroad Company, this 4th day of May, 1868.” On the return of this notice, the said company failed to file any answer to said garnishment, as required by law, and the said judgment nisi against it was made final and absolute. This judgment appears to be entirely regular. Erom this judgment, said company appealed to this court, and here insists that the judgment nisi and the judgment final, were insufficient, because it does not appear that there was any proof that Lewis Owen, on whom the garnishment and sci. fa. are alleged to have been served, was the president of said railroad company at the time of said alleged service.

This omission to show in the judgment below, that it was proven to the satisfaction of the court, that said Lewis Owen was the president of said railroad company at the time of the service of said garnishment and sci. fa. upon him, is a fatal defect, for which the judgment must be reversed. This practice has been so long sanctioned by this court, that it is not now open to dispute.—The Planters’ & Merchants’ Bank of Huntsville v. James B. Walker, Min. R. 391; Lyon et al. v. Lorant et al., 3 Ala. 151; Walker v. Hallett, 1 Ala. 379; Wetumpka & Coosa R. R. Co. v. Cole, 6 Ala. 655; Southern Express Co. v. Harrell, manuscript, January term, 1868; Talladega Insurance Co. v. McCullough, June term, 1868; Oxford Iron Co. v. Spradly, January term, 1868.

Let the judgment of the circuit court be reversed, and the eause be remanded.