Pollard v. Mobile Savings Bank ( 1883 )

Chalmers, J.,

delivered the opinion of the court:

The Mobile Savings Bank summoned.in garnishment Pollard & Co., as the debtors of Bush, Yates & Co.

The garnishees answered, admitting an indebtedness not yet due of about $4,200, but stating that they had been informed that the debt had been assigned to one Harrison, whom they prayed might be cited to appear and p ropo and his claim, if any he had. Summons being issued to Harrison he filed his answer, claiming the debt by an assignment anterior to the garnishment. Several terms after this the garnishees asked and obtained leave to file an amended answer in which they represented that at the time of the filing of their original answer they had been informed that the debt due by them to Bush, Yates & Co. had been transferred “ and that they had since learned as a fact that such transfer was really made by Bush, Yates & Co., for value before the service of the writ of garnishment upon them in this cause, so they say upon their oaths that at the time of the service of garnishment upon them they were not indebted to the defendants, Bush, Yates & Co., in any sum whatever.’"

Upon the filing of this answer, Harrison, the claimant of the debt garnished, withdrew his claim and in open court consented that judgment for the amount due might go in favor of the attaching creditor, the Mobile Bank, and such judgment was thereupon entered. The garnishees appeal. Their contention is that by their amended answer they had denied all indebtedness at the time of garnishment, and were therefoi-e entitled to be discharged in the absence of any traverse of the answer. This position is not borne out by the record. By their original answer they admitted an indebtedness which they had heard had been transferred to Harrison. Bjr their amended answer they declare that they have now learned positively that such transfer to wit, the transfer to Harrison, had taken place before thejr were garnished, and therefore they argumentatively deny that they owed the defendants anything at the time of the garnishment. This is plainly equivalent to saying that they had owed the defendants a debt which by transfer they now owe to Harrison. When, therefore, Harrison came in and released his claim, and consented that the attaching creditor might have judgment the garnishees cannot complain.

At the time of the filing of the amended answer the debt had matured, and under sect. 2449 of the Code it was the duty of the garnishees to have paid the money into court. This obligation they evidently sought to avoid by an argumentative denial that they were indebted; but looking at both of their auswers together it is evident -that they either owed the defendants or Harrison. By the withdrawal of Harrison’s claim and his consent that they might pay to the attaching creditor, they were left without any defence whatever.

Judgment affirmed.