Birmingham National Bank v. Mayer , 104 Ala. 634 ( 1894 )

McCLELLAN, J.

The statute does not in terms require that upon the contest of the answer of a garnishee an issue shall be made up in writing, but only that an issue shall be made up under the direction of the court, (Code, § 2981) ; but conceding that writing is necessary when not waived, there is no doubt, we think, that the making up of an issue orally in open court is the waiver of writing. In this case an affidavit was made by Love-man contesting in behalf of the plaintiff the answer of the Birmingham National Bank, garnishee, and thereupon “the attorney for the plaintiff stated that the said garnishee, at .the time of service of said garnishment, and at the time the answer was made, had money belong-, ing to the defendant amounting to $113.50. The torney for the garnishee then stated that the said garnishee did not have at the time of the service of said garnishment, or at the time of making said answer, $113.50 belonging to the defendant. ’ ’ Thus an issue was tendered by plaintiff-and accepted and, joined in. by the garnishee. This . was a waiver by the garnishee of .the. several irregularities in respect of the time when the affidavit of contest was filed, the insufficiencies of that affiidavit, &c., alleged in the motions made by the garnishee after the issue was thus made up; and the court did not err in denying those motions, even if it be conceded that they were abstractly meritorious, upon which, however, we express no opinion.

2. A creditor has no right to demand payment of his claim from his debtor’s debtor except by garnishment; and to hold that garnishment will not lie until the plaintiff has demanded of the party he intends to garnish payment of the debt the latter owes the defendant would be absurd. The case of Teague, Barnett & Co. v. LeGrand, 85 Ala. 493, proceeds on the theory that there is in cases like that, no debt until a call for payment has been made, and has no bearing here, where confessedly the relation of debtor and creditor existed between the garnishee and the defendant without any call or demand for payment being made by the defendant on the garnishee. It may be that upon general deposit, the depositor should make demand for payment before bringing suit against the bank, but the bank owes him a debt measured by the deposit as well before as after demand; and this debt may be reached by garnishment upon the very woi'ds of the statute. It was no defense for the garnishee here that the defendant had not drawn a check for the amount of his deposit and had the same dishonored.

3. The fact that the garnishee corporation had gone into voluntary liquidation and the concession that the defendant was not entitled to collect the full amount of his deposit, but only to share ratably in the assets,of the bank, will not avail the garnishee. The plaintiff, notwithstanding all this, was entitled to judgment for the amount which the garnishee owed the defendant, and upon this judgment, if it be true that creditors without liens at the time the bank went into liquidation were entitled to share ratably only in the assets, the plaintiff would receive only a share proportionate to the- relative amount of their claim thus evidenced against the bank.

4. There is no question of set-off in this case ; it is beyond the issfie made up. The garnishee did not claim that the defendant was indebted to it and offer to • set off-that debt against the defendant’s claim advanced by and-in behalf of the plaintiff; but the position of the bank was that it had paid the defendant’s claim by giving him credit for the amount of it on a note he owed the bank, before the garnishment was levied. This note was not due at the time the alleged appropriation of the defendant’s deposit to its payment pro tanto was made, nor was it due when the writ of garnishment was served on the bank. It is well settled, at least at law, that a bank has no power or authority to thus appropriate the amount it owes a depositor to an unmatured debt the depositor owes it, and this though the depositor be insolvent. Of course such appropriation may be made upon the depositor’s direction, or, being made without his consent, he may ratify it, provided the rights of third persons have not intervened, and ratification may be inferred from acquiesence in the appropriation after coming to a knowlege of it. But there is no evidence here of direction, direct ratification, or ratification by acquiescence. The attempted appropriation and payment were entirely abortive. The bank on the evidence in this record was indebted to the defendant when the writ of garnishment was served upon it; and the trial court did not err in hendering judgment against the garnishee.

5. The judgment as rendered against the garnishee and as certified here on this appeal did not recite the rendition of a judgment, the amount thereof, &c. against the defendant. This was error which, if uncorrected, would operate a reversal by this court. After the appeal was taken, however, the judgment against the garnishee was amended nunc pro tunc in the circuit court so as that it now contains the necessary recitals, and the amended judgment has been certified to us as upon an agreed certiorari. This amendment was well .made, in our opinion even after the lower court had lost control of the cause by appeal, as such amendments may well be made after the trial court has lost control by the termination of the term by which the defective judgment was entered ; and the case stands before us now as if the j udgment originally written up had been free from this infirmity, and must be affirmed.

Affirmed.