64 So. 957 | Ala. | 1914
On the 30th day of May, 1912, John H. Minge instituted his action in the Marengo law and equity court against the Faunsdale Oil Mill, a corporation, and on the same date made affidavit and executed bond for writs of garnishment against W. C. Clark and the First National Bank of Birmingham. On May 31, 1912, notice of the issuance of these writs of garnishment was issued by the clerk of the Marengo court, and this notice was served on the Faunsdale Oil
It thus appears that at the date of the service of the write of garnishment ( June 3, 1912) no part of the indebtedness of $10,000, by the oil mill to the bank, had matured; the earliest date of partial maturity being June 27, 1912. The set-off asserted by the bank was denied, upon the theory, as appears, that the liability of the bank to the oil mill for the sum on deposit could not be extinguished by setting it off against an equivalent sum of the debt of the oil mill to the bank, because the debt of the oil mill to the bank had not matured — -was not due — when the writ of garnishment was served on the bank. The ruling was in accord with established doctrine prevailing in this state.—Birmingham Nat. Bank v. Mayer, 104 Ala. 634, 641, 16 South. 520; Cox v
The date of the service of the writ determines the right to set off in garnishment proceedings, as in an ordinary action at law instituted by the defendant against the garnishee.—Self v. Kirkland, supra; 14 Am. & Eng. Ency. Law, p. 847.
Of course, the amendment of the answer by the bank effected, by relation back, to incorporate therein the added allegations just as if they had been made in the original answer.
The judgment is affirmed.
Affirmed.