69 So. 113 | Ala. | 1915
This cause comes to us by certiorari from the Court of Appeals. When first considered by that court the case was reversed and remanded; but on application for a rehearing the judgment of reversal was set aside, and the judgment of the lower court affirmed.
The record informs us that the appellee, Connie Hunter, brought suit against the appellants, C. H. Austin & Sons, and the sureties on the garnishment bond which they had executed to procure the issuance of a writ of garnishment in aid of a previous suit, pending in a justice court, which C. H. Austin & Sons had brought on account against appellee. It appears further that Hunter was duly served with summons in the justice court suit, and that the suit there proceeded regularly to judgment in favor of C. H. Austin & Sons and against the said Hunter — all of which occurred before the present suit was instituted on the garnishment bond.
The breach of the bond alleged in this action is (in one count) that the garnishment was wrongful, and (in the other) that it was wrongful and malicious, in that Hunter did not owe the debt on which the garnishment was founded. When the cause was first considered by
The lower court was thus in error in permitting plaintiff, over the objection and exception of the defendant, to offer evidence tending to show that the judgment rendered against him in the suit in aid of which garnishment issued was the result of a mistake or an error in the justice court. The plaintiff should have sought to correct this judgment by appeal or other appropriate remedy, if he wished to avoid its conclusive effect.
The Court of Appeals was in error in setting aside its former judgment of reversal and remandment in the cause.