Curry v. Woodward , 44 Ala. 305 ( 1870 )

B. F. SAFFOLD, J.

The single assignment of error is, that “ the court erred in rendering the judgment against the garnishee as shown by the record.” This assignment, so general and vague, must exclude from consideration any mere irregularities in the proceedings, and confine our inquiries to the jurisdiction of the court, and such errors, apparent on the record, as should have the effect of annulling the judgment.

It appears from the record, that the appellee recovered a judgment against the Talladega Insurance Company, the defendant in this ease, on the 18th of May, 1867.

The garnishment, issued by the clerk of the circuit court of Talladega county, recites, that the judgment was recovered in the court aforesaid, and an execution issued on it, which was returned by the sheriff of Talladega county “ no property found.” This is a sufficient showing that judgment had been rendered against the principal in the same court before it was given against the garnishee. — Jackson v. Shipman, 28 Ala. 488. But if there was a defect in this particular, this court would award a certiorari to bring up the record in the principal case, rather than reverse on that ground. — Blair v. Rhodes, 5 Ala. 648.

There is no bill of exceptions, but the answer of the garnishee is appended to the transcript, and is verified and referred to in the judgment entry, and must be considered as part of the record. — Easton v. Lowery, 29 Ala. 454; Fortune v. State Bank, 4 Ala. 385.

From this answer, it is shown that the garnishee was a subscriber to the capital stock of the insurance company, and that his unpaid stock amounted to more than the demand of the plaintiff. He claims an offset against this indebtedness for money deposited with the company, but the nature of this claim is not so definitely stated as to impress error upon its non-allowance, when no exception was taken in the court below. His claim of offset for dividends can not prevail. Dividends unpaid are assets of the company, and liable for its debts.

It was not neceessary to show that the stock had been called for by the company. — Rev. Code, § 2893; Smoot v. Mart, 33 Ala. 69.

As the court had jurisdiction of the cause, and the judgment might have been rendered, in the absence of any specified error which could not be corrected in the court below, or which ought to have been there first presented, the judgment must be affirmed.