Gaines v. Beirne,

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| Ala. | Jun 15, 1841

ORMOND, J.

The first judgment which was rendered against the garnishees, wras rendered too soon. There is no authority to render judgment against the garnishee upon his answer, until a judgment is obtained against the defendant in attachment, that being the only authority for condemning the money in the hands of the garnishee'. This judgment is therefore of no effect, and cannot prejudice the garnishee.

The final judgment which was rendered against the garnishee, after judgment against the defendant in attachment, is now resisted on the ground of the want of authority to render a judgment against the firm of Gaines & Fitzsimmons, upon the answer of Fitzsimmons, admitting that he individually was indebted to the defendant in attachment. This objection would probably be fatal to the judgment, if we could consider the answer of Fitzsimmons, a part of the record. The statute contemplates a viva voce examination of the garnishee, in open Court. In practice, we know that this is frequently dispensed with, and that the garnishee makes his answer in writing.

But whether the answer is made in one mode or the other, it is not a part of the record, unless made so by bill of exceptions, or incorporated in the judgment by reciting the substance of the answer. The case, here then is a conflict between abridgment of the Court and an informal paper, which the clerk has sent up, but which is no part of the record.

It is scarcely necessary to add, that we must give credence *116to the record, and from that it appears that the plaintiff was cited, that his co-partner appeared and answered, admitting the indebtedness of the firm, to the defendant in attachment. The record does not disclose the death of Fitzsimmons, further than it may be inferred from the rendition of judgment a'gainst the plaintiff, as surviving partner; but as no exception is taken, we mpst presume the necessary proof was made in the Court below. The appearance of the party rendered a judgment nisi, unnecessary, and the final judgment was properly rendered.

We can perceive no error in the record and the judgment must therefore be affirmed.