Friedman Bros. v. Cullman Building & Loan Ass'n

124 Ala. 344 | Ala. | 1899

DOWDELL, J.

— The appeal in this case is prosecuted from the judgment of the circuit court discharging the garnishee. The garnishee, the Cullman Building & Doan Association, is a domestic corporation. As disclosed by the record, the first and only legal answer made by the garnishee awls that filed by S. L. Fuller on the 17th day of September, 1895, Avhicli was accompanied by the requisite statutory affidavit showing his authority as agent to make the ansAAmr. — Codé of 1896, § 2190. The ansAver previously made and filed by C. Schultez Avas Avitliout the necessary statutory affidavit, and consequently Avas not such an answer as the court could predicate any order or judgment'upon. — Steiner v. First National Bank, 115 Ala. 379, and authorities there cited.

At the Fall term of the court 1895, Sept. 16th, the cause Avas continued generally, and on the folloAving day, Sept. 17th, Fuller filed his Avritten answer for the garnishee, and on the 19th day of September, at the same term, the order of continuance Avas set aside, and the garnishee required to ansAver orally. No further orders were made in the case at this term, and no contest was filed.

At the following Spring term, 1896, Puller, as agent of the garnishee corporation, in obedience to the orders of the court, made oral answer in open court. This answer, as well as the written answer filed Sept. 17th, 1895, denied indebtedness to the defendant. Plaintiff filed a contest of the oral answer made by the garnishee, which the garnishee moved to strike from the file, and at the same time praying to be discharged on its answer of no indebtedness, no contest having been filed to the written answer at the term at which it was made. This motion Avas overruled by the court, and the garnishee Avas required to join issue- upon the contest. In this ruling the court committed an error. The motion of the garnishee should have been sustained and the garnishee discharged, under the authorities of Steiner v. First National Bank, supra; Roman v. Baldwin, 24 So. Rep. 360; Roman v. Dimmick, 26 So. Rep. 214, and Code of 1896, section 2196. It necessarily follows that any errors the court may have committed in any of its rulings upon the trial of the contest, so far as the plaintiff is concerned, would be errors without injury, and therefore could not operate a reversal of the cause. The contest in the case being unauthorized, not having been instituted at the term at which the written answer Avas filed and there being no order of continuance for that purpose at said term, the giving of the affiiunative charge at the request of garnishee and the judgment of discharge, were free from reversible errors. The court in its final action merely rectified the error it had committed in overruling the garnishee’s motion to strike the contest and discharge the garnishee. The judgment of the circuit court is affirmed.