79 Ala. 532 | Ala. | 1885
“Appeals from judgments of justices of
When this case was appealed from the justice’s to' the Circuit Court, the judgment of the justice was thereby vacated; and 'the case stood in the higher court on the process and pleadings, without judicial action upon them, precisely as it would have stood at that stage of the proceedings, if the case had been instituted in that court in the first instance. There was process of garnishment regularly sued- out and served, answer of garnishees denying all indebtedness and liability, and the answer controverted by the oath of plaintiffs’ attorney.- — -Code of 1876, §§ 3683, 3299. There was nothing more.
In the trial before the justice of the peace, the inquiry was, whether or not Lehman, Durr & Co. were indebted to Driver, or had in their possession, or under their control, property or things in action belonging to Driver. The judgment rendered by the justice shows, that indebtedness vel non was the inquiry. No formal issue raising that question was required to be joined before the justice.—Condry v. Henley, 4 S. & Por. 9; Stockdale v. Riddle, 22 Ala. 678. There was, in fact, no written issue made up before the justice. The rule was different, when the case reached the Circuit Court. The sum claimed being in excess of twenty dollars, it was to be tried “ upon an issue to be made up under the direction of the court, and tried by a jury.’, — Code, § 3122. In forming an issue in this case, the plaintiffs were required to be the actors. On them rested the duty to “allege in what respect the answer [was] untrue.” Code, § 3299. Till that allegation was made — and it should have been made in writing — no issue was tendered, and no cause of action was set forth. Till then, the garnishee might stand still, and do nothing. ITis answer was on file, denying all indebtedness and all liability, and no judgment could be rendered against him on that. True, it was controverted, but that neither made nor tendered an issue. It simply placed the plaintiffs in position where they could tender an issue. They were in no better condition than a plaintiff would be in, who had brought a defendant into court by summons or attachment, but had filed no complaint. They could claim no judgment, for they had set forth no claim to have a judgment.
In ordinary suits for money claimed to be due, the plaintiff
In a case circumstanced as this was, the first step for plaintiff to take was to file his suggestion, or complaint, alleging in what respect the answer was untrue. On this the garnishee could have joined issue, or he could, possibly, have made other defense. Whether he did or not, the onus was still on the plaintiff of making out his case; for the statute makes no provision for a judgment by default.
Reversed and remanded.