Jones v. Howell

16 Ala. 695 | Ala. | 1849

PARSONS, J.

The garnishee answered in writing, and it is clear from the minute entry, that the answer at length was made part of the record. It can, therefore, be regarded as such. — Gaines v. Bierne, 3 Ala. Rep. 114; Fortune v. The State Bank, 4 Ala. Rep. 385. The truth of the answer was not denied, but it was treated by the plaintiff in the garnishment as a true answer. The garnishment is sued out against Jones, the plaintiff in error, as the administrator of Samuel Howell, deceased, suggesting that the plaintiff in error, as such administrator, was indebted to Cunningham, the defendant in a judgment, or had effects of his in his hands. The allegation is denied by the answer, but it admits that Cunningham’s wife is one of several distributees of the estate of said Howell, and admits that there were lands belonging to the estate, and that it had about five thousand dollars in notes given for the sale of property, in the hands of the plaintiff in error, as adminis* trator, but that this was the whole of the estate. The answer further states that the time allowed for the presentation of claims against the estate had not elapsed, and that there had been no settlement of the estate by the Orphans’ Coart,, and of course no decree ascertaining the distributive share of Cunningham’s wife.

The court below refused to discharge the garnishee upon this answer, but continued the cause for further answer, because the answer showed “probable future indebtedness.” And the court finally, on sci. fa., rendered judgment against the garnishee for failing to answer concerning the probable future indebtedness.

In Mock v. King, 15 Ala. Rep. 66, it was held, that the undivided interest of a distributee of an estate, in the hands of an administrator, is not subject to the process of garnishment. Hence, according to the state of facts as shownby the answer, and which was not controverted by the plairtiff in the garnishment, the garnishee ought to have been discharged. But he was required to answer further as to probable future indebtedness. This clearly related to the matter? stated in the answer, and the order was made, probably, under an impression that the money owing by the notes would be collected, and that there would be a final settlement and decree of distribution, whereby the wife of the defenlant in the judgment might become entitled to a distribuive share of the estate. As the answer was taken as true, according to the existing condition of the e’statg no better result could have come from a further answer as to probable future indebtedness to arise out of the existing state of things. Now, if the further answer hac been made and had admitted future indebtedness in tbs way, that could not have been subjected under the presero garnishment. The Branch Bank at Mobile v. Poe, 1 Ala. Rep. (N. S.) 396; Hazard v. Franklin, 2 ib. 349. A garnishment is in the nature of a suit and the statute prescribes a time for 1he garnishee to answer, with which the plaintiff in error complied. If it were conceded (rather contrary to the last mentioned cases) that the garnishee must discover his indebtedness to the time of his answer,it does not follow, that having duly and fully answered, he can be held to answer further for a probable future indebtedness. That is certainly beyond the letter and spirit of the statute, and for this error the judgment must be reversed, and the garnishee discharged. It is not necessary to enquire whether or not the distributive share of the wife of the defendant in the judgment could be taken from her for his debts in such a case. Let the plaintiff in error recover of the defendant the costs of this court and of the court below.