Fruitticher v. Ebersole , 10 Ala. App. 411 ( 1914 )

PELHAM, J.

The transcript shows a writ of garnishment duly and regularly issued out of the city court of Birmingham and directed to the appellant and others, at the instance of the appellee, on a judgment against the Standard Grocery Company and in favor of the appellee, on the 12th day of July, 1910. Set out in the transcript, also, is an answer made by the appellant, filed on August 8, 1910, in the usual form, denying indebtedness to the defendant in judgment, the Standard Grocery Company. The judgment in the record entry shows a conditional judgment to have been rendered against the appellant, as garnishee, on February 12, 1912, for failure to answer the writ of garnishment served on him, upon which a scire facias issued on the 19th day of March, 1912, which was served on the appellant on the 23d day of March, 1912, requiring him under the practice act regulating procedure in said court to appear within 30 days and show cause why the conditional judgment should not be made final. The judgment entry of April 23, 1912, shows that on motion of the appellee the judgment nisi rendered against the appellant on February 12, 1912, was made final.

The transcript contains no bill of exceptions, and the conditional judgment recites that the appellant (and those jointly garnisheed) had failed to answer as required by law. This judgment is regular and in due form. Its recitals that the appellant had not answered the writ of garnishment as required by law must prevail over any inference to the contrary afforded by an answer set out in the transcript that is not made a part of the record by a bill of exceptions or by any reference contained in the judgment entry. — Decatur, etc., Ry. Co. v. Crass, 97 Ala. 519, 12 South. 43.

The record shows regular continuances from term to term until the term at which final judgment was rendered, and there is no merit in the suggestion that there had been a discontinuance of the proceedings. The correct .transcript also shows service of the scire facias on the appellant on March 23„ 1912, and final judgment was not rendered until 30 days thereafter, on to wit, April 23, 1912. Conditional judgment followed by scire facias and final judgment is the proper proceeding upon failure of a garnishee to answer. — Code, § 4324; Sun Insurance Co. v. Doster-Northington Drug Co., 164 Ala. 572, 51 South. 414.

The court cannot be put in error for rendering the judgment set out in the transcript, and made the basis of the assignments of error, for anything appearing in the record, and an affirmation must follow.

Affirmed.