Lehman, Durr & Co. v. Hudmon Bros. , 85 Ala. 135 ( 1887 )

SOMERVILLE, J.

There is, in our opinion, no error in the judgment rendered against the garnishees. The case stood for trial de novo before the Circuit Court, on appeal from the justice’s court. The plaintiffs had controverted the answer of the garnishees, which denied the fact of indebtedness to the defendant; and an issue was thereupon made up under the direction of the court, as required by the statute, which was properly tried by a jury. — Code, 1886, §§ 2981-2982.

The garnishees having failed to appear and support the truth of their answer, the plaintiff was entitled to claim a judgment by default against them, such as the record shows was taken. A garnishee who is negligent, can claim no more favor at the hands of the courts, nor is he entitled to greater protection, than any other negligent party. He is required to use the same diligence in protecting himself against an improper judgment, that is exacted of other defendants. If he fails to do so, he is without relief. — Drake on Attach. (6th Ed.), § 658e. But the court, notwithstanding,properly proceeded to try the issue of indebtedness vel non before the jury, which issue was found against the garnishees, and in favor of tbe plaintiff. In the absence of any bill of exceptions showing the evidence introduced, and the rulings of the court on the trial, we must presume that this judgment was fully authorized by the facts, and that the answer was not sustained. — Code, § 2983.

The garnishees, having filed their written answer in the justice’s court, had the right to make additional answer, had they appeared at the trial in the Circuit Court, and claimed the privilege. But they were in default, failing to appear for any purpose. They can not now complain that the Circuit Court allowed the plaintiffs to proceed to trial, without continuing the cause in order that they might appear and make further answer at the next term. This was entirely discretionary with the court, and its decision in the matter is not revisable. — Gould v. Meyer, 36 Ala. 565; Pate v. Moore, 21 Ala. 758.

So far as we can see, the plaintiffs in the court below appear to have followed the statutory requirements regulating the -trial of contests of garnishees’ answers, and to have avoided the errors pointed out by us on the last appeal in the case — Lehman, Durr & Co. v. Hudmon Bros., 79 Ala. 532; Code, 1886, §§ 2981-2983.

Affirmed.