104 Ala. 402 | Ala. | 1893
The case of Hoyt, Ford & Robinson v. Murphy, 18 Ala. 317, involved the same question here raised. Murphy & Brack, of which firm J, H. Murphy was a member, owed Hoyt, Ford & Robinson, and they owed Murphy & Brack, which latter firm" had been dissolved. On its dissolution, Brack assigned to Murphy his interest in the partnership assets, in consideration of which Murphy
The evidence on the part of the garnishees tended to show, that Cooke agreed with Pollock in the presence of Scales, on the 27th of January, 1892, at the time the statements were made out and furnished to him, showing the balance due by his firm to garnishees, and what garnishees were owing him on his individual deposit with them, that garnishees might apply the $462.49 due him by them, to the account of Cooke, Phillips & Walker , due to garnishees. If this was true, then garnishees had the right to so apply it, and it was .not subject thereafter to plaintiff’s garnishment. — Hoyt, Ford & Robinson v. Murphy ,18 Ala. 317, supra. But Cooke, on the other hand,
Whether or not the defendant agreed to allow his debt against Pollock & Co. to be applied towards the payment of his firm’s debt to them, and whether or not he gave the notice to them not to sell any goods to his firm, without his approval, were each disputed facts, which the court,by its general charge in favor of the garnishees, should not have taken away from the j ury. It was their province, and not that of the court, to determine these disputed facts.
This principle is certainly true, where a judgment is rendered against a garnishee on his answer, without a contest, unless there has been a waiver of it by the garnishee. Whether it applies where there isa contest, as here, we need not decide. Such proof, in any event, is intended for the protection of the garnishee. The judgment against the defendant, however, is well described in the garnishment, which was sued out in its aid, and the garnishees made answer to it. It would seem that this was an admission of the judgment described in the garnishment, and was sufficient proof of its existence as against them in this proceeding. — Jackson v. Shipman, 28 Ala. 493 ; Curry v. Woodward, 44 Ala. 306 ; Schamagel v. Whitehurst, 103 Ala. 260. Besides, the record in
On no conceivable grounds was the general charge in in favor of the garnishees proper.
Reversed and remanded.