8 Ala. 811 | Ala. | 1845
In the present case the garnishee, appeared, and with the consent of the plaintiff in the proceedings, filed his answer in writing, at the Spring term, 1842, and no order was then taken for the allowance of further time to contest it, either on the part of the creditor or of the debtor. At the Fall term, 1843, the debtor corporation -was allowed to suggest that the garnishee was indebted to it in a larger sum than he was willing to admit on oath, and it was prayed they might be permitted to show the same by competent testimony. The garnishee declined to make any plea or reply, and no inference can be drawn that he assented to this proceeding, from the fact that he was represented by counsel before the Court; because he was there for the purpose, if necessary, of receiving a judgment on his answer.
For this reason we consider the judgment entirely erroneous* and decline to enter upon the consideration of the more important questions which grew out of the charge of the Court.
The 24th section of the general attachment law provides, that the defendant may, in all cases, shew, by competent testimony,, that a garnishee is indebted to him in a greater amount than he is willing to admit on oath, but there is no mode pointed out by which the cause is to proceed, when the .defendant chooses to avail himself of this privilege. We think other parts of the statute furnish analogies which must govern the proceedings in this. Thus, under the 25th section, the same privilege is- given to the plaintiff, but he is required to make oath that he believes the answer to be incorrect; and upon making this oath an issue is to be formed and tried as- in other cases. [Clay’s Dig. § 24, 2'5.] The 40th section- of the same act provides, in the same defective manner, for a contest between the creditor and the transferee of the
As there has been no attempt at conformity with what we consider the proper practice, the judgment must be reversed, and the cause remanded, that such judgment may be rendered on the answer of the garnishee as is proper.
Reversed and remanded.