Henry v. McNamara

124 Ala. 412 | Ala. | 1899

SHARPE, J.

— The immature claims of indebtedness accruing to a defendant ’which may be subjected to garnishment, are those which spring from contracts in existence when the lien of the garnishment process attaches. Code, § 2175. An indebtedness contingent upon the making of a new contract, or the renewal of an existing one, is not within the terms or meaning of the statute. To create the liability the contract must be such as that the duty of payment is already fixed, or is fixed to result from its performance. A contract of employment which by its terms makes its continuance at all times dependent upon the will of either party, hinges the contingency of indebtedness upon the volition of the parties rather than upon the contract or its performance. The court correctly charged in substance that such a contract does not evidence a future indebtedness subject to garnishment. — Archer v. People’s Savings Bank, 88 Ala. 249; Alexander v. Pollock, 72 Ala. 139.

Of the charges requested by the plaintiff the first is incorrect. 'The sums overdrawn by defendant from garnishee’s funds appear from their manner of dealing to have been allowed by way of payment in advance for defendant’s services. As payments they were available to extinguish pro tanto the garnishee’s liability without being pleaded or claimed as a set-off.

Upon the former appeal in this case it was decided that the garnishment did not reach any indebtedness accruing after answer made; that on appeal from the justice court the garnishee was not bound to answer as to debts accruing after the answer in the justice court. It was also held that though a new answer denying present indebtedness would afford the plaintiff an opportunity to make an issue as to whether an indebtedness existed at that time, yet such a denial did not warrant an issue as to debts accruing'between the two answers and not owing at the time of the last. — Henry v. McNamara, 22 So. Rep. 428. The answer was made in the justice court on March 1st, 1895. The effect of the former ruling is to exclude from the reach of this garnishment debts accruing on account of defendant’s services after that date unless they remained unpaid at the time the answer Avas filed in the circuit court and the fact of indebtedness at the latter date was only made material by reason of its having been included in the issues tried.

Charges 2, 3 and 4 are each misleading in ignoring the last stated principle, and in not confining their propositions relating to the effect of payments, to such payments as were made on indebtedness covered by the garnishment.

Let the judgment be affirmed.