104 Ala. 634 | Ala. | 1894
The statute does not in terms require that upon the contest of the answer of a garnishee an issue shall be made up in writing, but only that an issue shall be made up under the direction of the court, (Code, § 2981) ; but conceding that writing is necessary when not waived, there is no doubt, we think, that the making up of an issue orally in open court is the waiver of writing. In this case an affidavit was made by Love-man contesting in behalf of the plaintiff the answer of the Birmingham National Bank, garnishee, and thereupon “the attorney for the plaintiff stated that the said garnishee, at .the time of service of said garnishment, and at the time the answer was made, had money belong-, ing to the defendant amounting to $113.50. The torney for the garnishee then stated that the said garnishee did not have at the time of the service of said garnishment, or at the time of making said answer, $113.50 belonging to the defendant. ’ ’ Thus an issue was tendered by plaintiff-and accepted and, joined in. by the garnishee. This . was a waiver by the garnishee of .the.
Affirmed.