29 Ala. 454 | Ala. | 1856
The first question to be considered is, whether we áre authorized to look to the answer of the garnishee as a part of the record; for, unless we can so regard the answer, it is very clear there is no error in the judgment.
Section 2540 of the Code authorizes the garnishee to answer in writing; but, even when he has done so, secures to the plaintiff the right to require him to be examined orally in the presence of the court. Accordingly, the garnishee in this case filed his answer in writing on the 13th February, 1855 ; but afterwards, and on the 29th June, 1855, he appeared, and answered orally in open court. The judgment entry shows, that this answer in open court was “ reduced to writing, and ordered to be filed.” It appears by endorsements on these answers, that each of them was filed ; and
That answer showed, that George Draper claimed title to, or an interest in, the debt which the garnishee admitted to be due ; and therefore it was the plain duty of the court, under section 2549 of the Code, to have suspended proceedings against the garnishee, and caused a notice to issue to said Draper, to appear at the next term of that court, and contest with the plaintiff the right to the money. But, instead of this, the court discharged the garnishee, without the consent of the plaintiff, and without any waiver of the right, secured to him by section 2549 of the Code, to contest with Draper the right to the money. In thus discharging the garnishee, the court below erred. Its judgment is therefore reversed, and 1he cause remanded.
