68 So. 519 | Ala. Ct. App. | 1915
The appellants here, Blackman & Co., were plaintiffs in the justice of the peace court in a garnishment proceeding, wherein, upon proper affidavit there made, a writ of garnishment was issued against one Newton as garnishee upon a judgment which plaintiffs had previously obtained in said justice court against one Rogers as defendant.- — Code, §§ 4301, 4302. The garnishment writ was duly served on the garnishee, and notice, of its issuance upon the defendant in conformity with the provisions of sections 4304 and 4305 of the Code, and the said garnishee, Newton, thereupon filed formal answer in writing to the writ, as required by section 4316 of the Code, admitting an indebtedness to the defendant, Rogers, as being then due; but the garnishee did not in such answer, nor in any amendment or supplement thereto, ever suggest, as was his right under section 4328 of the Code, any claimant of the fund, or allege any facts from which it could even be inferred that any person other than defendant claimed or had any interest in the same. It appears, however, that before the return day of the writ of garnishment, which was fixed therein at December 3, 1913, R. E. Collier, the appellee here, who had not, as said, been in any way suggested by the garnishee as a claimant of the fund, voluntarily and on his own initiative came in and sought to make himself a party to the proceeding by filing an affidavit in the cause, setting up and claiming therein that the debt which the garnishee, New
The court erred in not dismissing the cause. Section 4328 of the Code prescribes the mode for making third
Reversed and remanded.