Balkum v. Reeves

98 Ala. 460 | Ala. | 1893

COLEMAN, J.

J. S. Reeves & Co. began suit by attachment against J. A. Balkum, returnable to the Circuit Court of Dale county, Alabama. The attachment was levied by summoning certain parties as garnishees, who filed their several answers, admitting indebtedness, in certain, specified sums. The attachment suit was prosecuted to judgment against the defendant, Balkum. Under the act of the legislature approved February 12th, 1891, Acts of 1890-91, page 590, the defendant, Balkum, executed his bond with approved security as therein provided. Upon the execution of this bond each of the garnishees paid the amount of their respective indebtedness to the defendant in attachment, and the garnishment proceedings were dissolved and dismissed. The court rendered judgment against the defendant and his sureties on the bond given in pursuance of the statute. The rendition of this judgment is assigned as error. Counsel for appellant have filed no brief in the cause.

We will not undertake a judicial interrelation of this statute, farther than may be necessary to the disposal of the case before us. Beading tbe statute as a whole, we bold tbe statute was intended to apply to suits pending before judgment, upon wbicb tbe process of garnishment issued as well as where judgments have been obtained. We think this construction follows from that part of tbe statute, wbicb provides that “tbe defendant may dissolve such garnishment, and have tbe same dismissed, upon filing in tbe clerk’s office of tbe court where tbe suit is pending or judgment was obtained, or with tbe justice of tbe peace where suit is pending or judgment obtained, a bond with sufficient security payable to tbe plaintiff,” &c.

The clerk has no authority to enter an order, dissolving tbe garnishment or dismissing tbe same, after tbe execution of the bond, but bis order to that effect in this case, was not an error of wbicb appellants can complain. We observe that tbe statute makes no provision, for contesting tbe answer of tbe garnishee, nor does it provide at what stage of tbe proceedings, whether before or after tbe answer filed by tbe garnishee, that tbe defendant may execute such bond, or at what period, “tbe defendant may dissolve such garnishment or have tbe same dismissed,” but as these questions are notraised by tbe present record, and their decision at this time not necessary, we express no opinion. There is no error in tbe judgment rendered, and tbe case must be affirmed.

Affirmed.