110 So. 476 | Ala. Ct. App. | 1926
Appellee brought suit in the inferior court of Bessemer against one George Wilson, an employee of appellant. The writ of garnishment, in aid of this suit, was duly issued by the clerk of said court on the 3d day of November, 1924, directed to garnishee (appellant) commanding it to appear before said court on the day therein specified, November 29, 1924, and answer on oath what it was indebted to the defendant (Wilson) at the time of the service of the writ, or at the time of making answer thereto, and what it would be due defendant by contract then existing, or what personal property or things in action it had in its possession or under its control, belonging to said defendant. The writ of garnishment was served on garnishee (appellant) on November 13, 1924, and it filed its answer, under oath, in writing, on November 15, 1924.
Thereafter, on November 18, 1924, garnishee was cited, at the behest of appellee, to appear in court and answer orally on November 29, 1924, what it was indebted to defendant, etc. In answer to this citation appellant, through a proper agent, was examined orally on the said November 29, 1924.
According to the written answer filed by appellant on November 15, 1924, it was due to be discharged. According to the oral answer of November 29, 1924, if considered not in connection with, or in disregard of, the written answer, there were funds in its possession, or a debt owing by it to defendant, subject to be condemned to the satisfaction of appellee's claim. The oral examination showed, however, that the written answer of November 15th was in all respects full, true, and complete as of its date. From a judgment adverse to it in the said inferior court, appellant appealed to the circuit court, and from a like adverse judgment there, brings the case to this court.
As stated by counsel for the respective parties, on this appeal, the sole question involved, and a decision of which is invoked, is whether the garnishee (appellant) has a right to answer garnishments immediately upon service thereof, and be held liable only (where there is no continuing contract, etc., between it and the defendant) as of the date of its answer, or whether it is required to answer on the day named in the writ. Stated, perhaps more clearly, the question is: Both answers being true and not conflicting with each other, where the writ fails to designate whether a written or oral answer is required, is the garnishee's liability fixed according to the indebtedness from it to defendant shown by its written answer first filed, or according to its oral answer later given in response to the citation to it issued on the motion of plaintiff? The pertinent statutes we do not find to be different at the time this litigation was instituted and had from what they were in the Code of 1907.
It will be noted that in the instant case no contest was instituted as to the answer of garnishee filed November 15, 1924, or as to its oral answer on November 29, 1924.
"The lien [of the garnishment] therefore attaches to any debt of the garnishee to the defendant owing at the time of the service (of the writ), or at the time of the answer, or becoming due at any time between the service and the answer or the contest thereof, or in the future, under a contract existing at the time of the service or answer." Henry v. McNamara,
"The garnishee may safely answer the garnishment at once, in which event no money or effects subsequently coming into his hands, or debts subsequently contracted, are made by the statute subject to the lien created by the service. When a garnishee appeals to the circuit court from a judgment rendered against him by a Justice of the Peace * * * the case is triable de novo upon its merits. It is a consequence following upon the statutory requirement that the trial shall be de novo, that the garnishee may answer anew in the circuit court. * * * If * * * he exercises the right and files a new answer, * * * the effect of filing such new answer is not to extend the period of inquiry as to indebtedness up to the time of the making of the new answer, except as to such as accrues during this periodunder an antecedent contract * * *." Id. (Italics ours.)
True, counsel for appellee insist that the quotations above from the Henry v. McNamara Case are dicta, but, even so, if they afford information as to the views of the Supreme Court on the question under consideration, which seems not heretofore to have been directly decided in this state, it would be the plain statutory duty of this court to follow them. *582
But we think the even later case of First National Bank v. Dimmick,
It appears therefore that in this case the garnishee was acting within its rights in filing the answer of November 15, 1924, and that its liability was — that answer being uncontested — to be measured as of that date. And, there being no evidence that any amounts due from it to defendant at any later date accrued under a contract in existence on November 15th, testimony as to such later indebtedness should have been excluded.
The fact that the litigation arose in the inferior court of Bessemer, a court with jurisdiction in such matters identical with that of justices of the peace, does not, as we view the situation, substantially change the rules of law above quoted and set forth, or, perhaps we should say, render them inapplicable
The cases cited by counsel for appellee will each, upon close inspection, be found not to deal with a situation such as that shown by the evidence in this case, and do not militate against our holding.
The rulings of the trial court not being in accord with what we have said above, the judgment is reversed and the cause remanded.
Reversed and remanded.
