Ex parte Opdyke, 62 Ala. 68

62 Ala. 68 | Ala. | 1878

BRICKELL, C. J.

-When a garnishee by his answer, or after answer and before judgment thereon, alleges that he has been notified a third person claims the debt owing by him, or the property in his possession, which it is sought to reach by the garnishment, it is the duty of the court to suspend proceedings, and cause a notice to issue to such third person to come in at the next term of the court and contest with the plaintiff the right to the debt or property. — Code of 1876, § 3301. On the appearance of such claimant he must, in writing and under oath, propound his claim, and an issue of law or fact must be formed between him and the plaintiff in the garnishment. — lb. § 3303. It is optional with such claimant whether he will enter into a contest with the plaintiff; the court can not compel him into it. All that the court has power to do, if he does not propound his claim, is to spread his default on the record, and proceed to judgment as if the existence of the claim had not been suggested.— Evans v. Norman, 14 Ala. 662. When he propounds bis claim, and an issue is formed between him and the plaintiff, while it is collateral to the garnishment proceeding, it is in many respects a distinct and independent suit, and from the judgment rendered therein an appeal lies, the parties to which are the plaintiff and claimant only; and in the costs which may be incurred, the defendant in the judgment or attachment, and the garnishee, are without interest and without liability.

The writing verified by the claimant serves the purposes of pleading, and the burden of proof rests upon him to support it.— Camp v. Hatler, 11 Ala. 151. Though the statute contemplates that the claimant will appear at the term of the court to which he is cited, and will then propound his claim, there is nothing in its terms which excludes the power of the court to enlarge the time of propounding the claim, or to continue the cause, with leave to propound it at a succeeding term. Such power the courts of this State have exercised since their organization, and it is essential to the proper administration of justice that they should be clothed with it. The matter rests in the sound discretion of the court, and its action is not revisable.

Preceding sections of the same article of the Code authorize the plaintiff or defendant in the garnishment, to controvert the answer of the garnishee at the term it is made; and an issue must be formed under the direction of the court, stating the particulars in which the answer is averred to be untrue. — Code of 1876, §§ 3299-3300. These are pre-existing statutory provisions re-enacted in the Code. The constructions which they have received, is, that the answer must be controverted at the term it is made. But it is apparent, when the cases are carefully examined, that it was not intended to deny the court had power, by an order, to enlarge the time for controverting the answer and forming the issue. Graves v. Cooper, 8 Ala. 811; Lockhart v. Johnson, 9 Ala. 223; Marston v. Carr, 16 Ala. 325. It would be an anomaly in the practice of the courts, which the statutes were not intended to produce, to disaffirm in ease of a claimant in a garnishment proceeding, the power of the court recognized in all other proceedings, to enlarge the time of pleading to the merits, and to continue causes that such pleading may be introduced. The exercise of the power rests, as we have said, in the discretion of the court, and its action is not revis-able. The application must be overruled.