108 Ala. 355 | Ala. | 1895
The appellee West recovered a judgment in the justice court against J. J. House. On this judgment E. H. Sholl was summoned as garnishee. The answer of the garnishee admitted indebtedness to become due for the board of his horse at “The Tennessee Livery Stable” under an agreement with J. J. House,
The judgment in the. justice court is not drawn with any formality, but for the purpose of this appeal we will regard it as sufficient .to authorize its enforcement against the garnishee. The appeal to the city court was by the claimant, and not by the garnishee. The argument is, that the claimant was never made a party to the cause in the justice court, that although the garnishee suggested the claimant, she was never notified, or at least did not propound her claim in writing. There is no entry on the justice docket to show that notice was served on the claimant to come in and propound her claim, or that she did in fact appear, or that an issue was made up and tried between the claimant and the plaintiff. It was the duty of the court after notice by the garnishee that there was a claimant, to suspend proceedings against the garnishee, and cause a notice to issue to the claimant to appear and contest with the plaintiff the right to the debt. Code of 1886, § 2984. The garnishee discharged the duty imposed upon him by statute,in order to exempt himself from a double liability . From thenceforward, the burden was on the plaintiff, to see that the claimant was notified and propounded his claim, unless the claimant made default. — Edwards v. Levinshon, 80 Ala. 447. The bill of exceptions .shows without conflict,- that claimant did appear before the justice court, by counsel “who commenced to prepare a written claim to be propounded, when the counsel for
It is the settled law that in a statutory claim suit, whether commenced before a justice of the peace or in the circuit court, the affidavit and bond required of the claimant are jurisdictional and cannot be dispensed with by consent of parties, express or implied. — Mobile Life Insurance Co. v. Teague, 78 Ala. 147 and authorities cited.
The court did not err in dismissing the cause.
Affirmed.