Henry v. McNamara

114 Ala. 107 | Ala. | 1896

BRICKELL, C. J. —

Section 2957 of the Code provides that the service of a garnishment shall create a lien in favor of the plaintiff. Section 2946 prescribes what this lien shall cover by requiring the garnishee to answer “whether-at the time of the service of the garnishment, or at the time of making his answer, or at any time intervening the time of serving the garnishment and making the answer,he was indebted to the defendant, and whether he will not be indebted in the future to him by a contract then existing, * * * * and whether he has xiot in his possession or under his control money or effects belonging to the defendant.” The lien, therefore, attaches to any debt of the garnishee to the defendant owixig at the time of the service, 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.— Lady Ensley Furnace Co. v. Rogan, 95 Ala. 596. But it does not attach to any debt after the making of the answer, or to any property of the defendant in the hands of the garnishee the possessioxx of which was thereafter acquired. The garnishee may safely answer the garnishment at once, in which event no xnoney or effects subsequently coming into his hands, or debts subsequently contracted, are xnade by the statute sxxbject 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 on a contest of his answer, 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.— Francis-Chenoweth Hardware Co. v. Bailey & McConnell, 104 Ala. 569 ; Lehman v. Hudmon, 85 Ala. 135 ; Case v. Moore, 21 Ala. 760. But it is not .necessary for him to do so, if, in his former answer, he answered all the matters required by the statute to be answered. If, however, he exercises the right and files a new answer, which is a mere repetition of the former one, denying indebtedness, &c., during the period fixed by the statute, 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 period under an antecedent contract; nor to authorize the plaintiff to tender an issue of indebtedness vel non contracted during the period intervening between the making of the two answers. The issues are the same, and the period over which the inquiry can extend is the same as they would be if no new answer had been filed. But if in such answer the garnishee, after denying indebtedness at the time specified in the statute, goes further and denies that he is indebted to the defendant at the time of the filing of such new answer, a time not covered by the garnishment, then, as between him and the plaintiff, he thereby gives the latter an opportunity to controvert the 'truth of the denial and to tender an issue averring that the garnishee was indebted to the defendant at the time. The plaintiff cannot, however, merely because of this additional denial in the answer, require him to meet an issue averring the existence of an indebtedness at some time between the making of the two answers, except as such accrued during the period under an antecedent contract, nor any issue which, if joined in, would authorize proof of an indebtedness contracted after the making of the .first answer.

Applying these principles to the case under consideration, it results that the demurrer to the fifth and eighth issues was properly sustained. As we construe them, the averments therein as to indebtedness and the possession of property has reference to the period between the service of the garnishment and the last answer, and would have authorized plaintiff to prove that at some time between the making of the first and last answers garnishee had become indebted to the defendant, or had acquired possession of property belonging to him, and upon such proof obtained a judgment, although the debt had been paid or the property restored prior to the last answer. If we construe the issues as referring to the period between the service and the first answer, then appellant was not injured by, and can not complain of, the action of the court in sustaining the demurrers, since he had the benefit of the same issues under the fourth and ninth issues, respectively. With respect to the fifth issue, it will be observed that the time when the indebtedness is alleged to have been incurred is laid under a videlicet, the object of which is to inform the other party that the pleader does not intend to rely on the time as alleged, and he could, therefore, although the time alleged was prior to the service of the garnishment, have shown that the indebtedness was incurred at a time subsequent to the first answer. — Simpson v. Talbot, 25 Ala. 470.

The court erred in giving the general charge in favor of the garnishee. The issue of idebtedness vel non should have been left to the jury. From the facts in evidence the jury might properly have inferred the intention with which the services were rendered by the defendant for the garnishee, whether in expectation of receiving compensation or not, knowledge of the services on the part of the latter and his acquiescence therein and acceptance thereof, and the existence of every material fact necessary to raise a legal presumption of a promise to pay for the same. The general charge should never be given when any material fact in the case rests in inference, or when it become necessary to determine the intention of the parties. — 1 Brick. Dig. 335, § 4; Tabler v. Sheffield Land, Iron & Coal Co., 87 Ala. 309 ; Cox v. Knight, 49 Ala. 173.

Let the judgment be reversed, and the cause remanded.

Reversed and remanded.