Woodlawn v. Purvis , 108 Ala. 511 ( 1895 )

HEAD, J.

The first count of the complaint shows, most plainly, that the legal title to the bill of exchange, therein declared on, is in the plaintiff. It is analogous to form of complaint No. 2. Code, p. 790, and is sufficient. The demurrers to it were properly overruled.

There was no misjoinder of causes of action. — Code, § 2672.

The demurrers to the special pleas were properly sustained, for the reason, as stated in the demurrer, that the pleas confine the defendant’s want of notice of the alleged transfer of the claim to plaintiff, to the time when the garnishment was served upon it, and not to the time of making answer. — Code, § 2984.

The complaint contains, among others, a count for work and labor done by John Sutcliffe, for the defendant, and a count on account stated between John Sut-cliffe and defendant, each averring that the demand is the property of the plaintiff. There is no sworn plea denying the plaintiff’s ownership of these demands, as provided by Rule 29 of circuit court practice. — Code, p. 810. The assignment of the claims to plaintiff cannot, therefore, be disputed ; and the plaintiff testified, without contradiction, that the assignment took place, and notice thereof given to defendant, through its mayor, on whom the garnishment was served, before the defendant answered the garnishment. The testimony of the may- or is the same, as to the receipt of notice of the assignment, before answering the garnishment.

The evidence is without conflict, that the defendant owed Sutcliffe the amount sued for, $29.05, for services rendered as an architect; and the evidence is satisfactory that the account for that sum, had been stated between the parties. The defendant cannot defend either of these counts, on the ground that it suffered and paid a judgment against it, in the garnishment suit, on an admission in its answer, of indebtednes to Sutcliffe, without having suggested plaintiff as a claimant, as required by section 2984 of the. Code. If the defendant is subjected to double payment, it results from its own default, in not making the suggestion, in its answer above indicated. .

The judgment of the circuit court was right, amPthe same is affirmed.