Bessemer Savings Bank v. Anderson , 134 Ala. 343 ( 1901 )

HARALSON, J.

R. W. Anderson was sued in the justice’s court March 26, 1900, by J. H. Johnson, and judgment was rendered against him therein March 31, 1900, in favor of the plaintiff, for $57.51. To collect the debt., the. plaintiff garnished the Bessemer Savings Bank. The garnishee, on April 5, 1900, appeared on summons, and answered an indebtedness of $410. It did not set np in its answer that the plaintiff in this suit claimed said fund, The proof, on the paid of plaintiff showed, Avithout dispute, that) the garnishee Avas ¡notified by the defendant, R. W. Anderson, and by the plaintiff, before it made ansAver to the garnishment Avrit, that $370 of 'the fund garnished belonged to the plaintiff. The garnishee, according to> plaintiff’s evidence, afterwards paid $310 to the plaintiff, leaving in its hands $60, which, plaintiff claimed, and which this suit is brought to 1-eeoAur. The proof also showed, without conflict, that the money imi the hands of the bank had been deposited therein by R. W. Anderson to his individual credit, but he and the plaintiff, his Avife, both testified, and there is no proof to the contrary, that the money belonged to the plaintiff; and the proof also shows, Avithout dispute, that when said R. W. Anderson made, the deposits, he informed the cashier that the funds belonged to the plaintiff, except $40 of it.

It Avas also shown that proceedings in bankruptcy had been instituted in the United States bankrupt court against said R. W. Anderson, hut that tire same had been dismissed by the order of that court, on the 7th July, 1900, at said Anderson’s cost. The proof also tends to show that these costs, amounting to $40.15, were paid to the clerk of that court by the garnishee, on the 12th July, 1900, but it is not shown that the same Avere paid by any judgment against the garnishee; nor by the order of said R. W. Anderson. It further appears that the garnishee 'paid to the justice of the peace in said garnishment proceedings against it, on the 10 July, 1900, the sum of $59.85, these two amounts making $410, the sum admitted by garnishee to be in its hands belonging to said defendant R. TV. Anderson, but it appears that no judgment, in said justice’s court had been rendered against garnishee for that, or any other sum, mor did it appear that, the same was paid with the knowledge, or by the direction of the plaintiff, but the same ivas a voluntary payment so far as is made to appear

The plaintiff’s evidence tended! to show, that the $310 paid by the garnishee, after garnishment, out -of the deposits made by the defendant, was paid to' plaintiff. The president of the garnished bank testified, that it was'paid to .the husband of the plaintiff. But this is immaterial. There wa,s left in the hands of the garnishee, without any question, the sum of $60, claimed by the plaintiff and here sued for. The garnishee admitted that it had $410 in its hands deposited there by defendant, and seeks to defend this suit on the grounds, that the money in its hands was not the. money of plaintiff, and she has no right toi sue for1 and collect the same, in any event; and that, the money paid to the justice of the peace in said garnishment proceeding, and the costs paid to the clerk of the United States court., in said bankruptcy proceeding, constitute .a discharge of liability for said fund. But this defense cannot avail it. To protect it, the fund must have been paid on a judgment in. garnishment rendered against it, or, as against the garnishor, that it was paid with her consent. — Gunn v. Howell, 35 Ala. 144; Ross v. Pitts, 39 Ala. 606; 8 Am. & Eng. Ency. Law 1197.

It is true, that when said* R. TV. Anderson deposited the money in bank to' his individual credit, that fact, without, more, showed, prima, facie, that it belonged to him, but not conclusively so. If it really belongs to plaintiff, the fact that her husband, to whom she intrusted it, to' be kept for her, deposited it in bank to. his own credit, did ¡mot change her title to it. That it did belong to her, he and she both swear, and he, that he so notified thei bank at the time he made the deposit, and there is no evidence, to- the contrary. It is also undisputed, that after the writ of garnishment was served, and. before the gairnish.ee answered, garnishee was notified that plaintiff claimed $370 of the fund in its hanid. Iti was the duty of the garnishee in making answer, to make known that it had been notified that plaintiff claimed the fund or a part of it in his hands, and if it failed and paid after notice of such claim, it did so at its peril. Such failure precluded- plaintiff from asserting her claim to the fund in the justice’s, court. — Lewin v. The Insurance Co., 62 Ala. 221; Donald v. Nelson, 95 Ala. 111; Woodlawn v. Purvis, 108 Ala. 513.

The mere fact that the trial judge did* not mark “Given” on . a charge which was requested by plaintiff and which was given, is not reversible error. The defendant did not direct the attention of the court to the failure, and took no exception! at the time. For aught appearing, the failure of tire judge to so mark the charge, was a mere inadvertence. — Barnewall v. Murrell, 108 Ala. 366.

Affirmed.