Brake v. Curd Sinton Manufacturing Co.

102 Ala. 339 | Ala. | 1893

HARALSON, J.

The appellee brought suit in the circuit court of Jefferson county against R. D. Jones on a money demand, and, in aid of that suit, garnished J. L. Brake, the appellant. There is no bill of exceptions in this case. It is brought here for a review for errors apparent on the record.

The record discloses an answer filed by the garnishee on the 9th day of January, 1890. It denies any indebtedness by garnishee to defendant,,- Jones. It also appears from the record, that plaintiff, appellee here, by its attorneys, on the 6th of February, 1890, filed a paper in the cause,, styled, “Traverse of answer of J. L. Brake, garnishee,” which sets up that the answer of the garnishee is untrue, and points out the respect in which it is untrue, and concludes by asking that an issue be made up ‘ ‘to try whether said garnishee was indebted to said defendant at the time of the service of said garnishment, or at the time of making of said answer, or at any time intervening the service of said garnishment or making said answer. ’ ’ This traverse of the answer, was not verified by the affidavit of any officer -or agent of the plaintiff corporation, but is simply signed by Lane & White, without more.

The Code, section 2981, provides, that “the plaintiff, his agent, or attorney, may controvert the answer of the garnishee, by making oath, at the term the answer is made, that he believes it to be untrue ; and thereupon an issue must be made up under the direction of the court, in which the plaintiff must allege in what respect the answer is untrue.” No issue, so far as appears, was made up between the plaintiff and the garnishee, at the term of the court at which the answer was made, or at any other time.

On the 24tb of October, 1892, nearly two years after the filing of the answer denying indebtedness, and without any thing more than has been above recited, on motion of the plaintiff, the court rendered a judgment by default against the garnishee, as in a suit on an open account, where the defendant failed to appear and plead, and proceeded, without intervention of a jury, to hear evidence, and assessed the plaintiff’s damages at $237.82, for which amount, and costs of the proceeding, the judgment against thp garnishee was rendered.

These proceedings were fatally defective. The paper filed looking to a contest of the garnishee’s answer was insufficient for that purpose, if for no other, for the all sufficient one, that it was not verified, as the statute requires. — Code, § 2981; Donald v. Nelson, 95 Ala. 111. The time allowed the defendant to contest, under this provision of the Code, does not extend beyond the term of the court at which the answer is made,- unless the court, at the time, grant further time within which the contest may be instituted ; and without such an order, the garnishee can not be compelled to join in an issue at a subsequent term, unless he has expressly or by implication waived his right to a discharge. Cross v. Spillman, 93 Ala. 170. McDaniel v. Reed, 12 Ala. 616 ) Lockhart v. Johnson, 9 Ala. 223; Graves v. Cooper, 8 Ala. 811. Lindsay v. Morris, 100 Ala. 546, when properly interpreted, is not in conflict with these rulings.

The judgment rendered against the garnishee is further defective and erroneous, in that it fails to recite the fact and amount of a j udgment, against the defendant. Chambers v. Yarnell, 87 Ala. 400; Faulks v. Heard, 31 Ala. 516; Gunn v. Howell, 27 Ala. 676; Whorley v. M. & C. R. R. Co., 72 Ala. 20.

The judgment is reversed, and an order will be here entered, discharging the garnishee.

Reversed and rendered.