Merrill & Bridges v. Vaughan

118 Ala. 438 | Ala. | 1897

HARALSON, J.

1. Although it does not expressly so appear, we must presume that a proper claim, as required by statute, was made by the claimants to the fund in the garnishee’s hands, and a proper issue was formed under the direction of the court between them and the plaintiff for the determination of the right of claimants to the fund admitted by the garnishee to be inits hands. — Code of 1886, §2985; Winslow v. Bracken, 57 Ala. 370; Reynolds v. Collins, 78 Ala. 94. This issue is collateral to the suit against the debtor and the suit by garnishment. A claimant is only collaterally interested in questions that may be raised and tried between the plaintiff and the defendant and between him and the garnishee, and is never admitted as a party, in their respective contentions. The claim suit does not involve an inquiry into the regularity of either of those suits, and the issue in such a case is provided, for the summary determination of the right of the claimant as against the plaintiff or garnishing creditor. — Winslow v. Bracken, supra.

2. If it be admitted that the issuance of the writ of garnishment by the justice before the summons and complaint were actually placed in his hands, was a defect or irregularity such as, between the plaintiff and the garnishee, might have avoided the writ, on the motion of the latter, properly and seasonably made, yet, it was one which the garnishee, by appearing and answering without object-icfn, waived. Such a defect, available to the garnishee, was not involved in the issue between the plaintiff, or garnishing creditor, and the claimants, and they cannot avail themselves of, or be permitted to inquire into, any mere defects or irregularities in the original proceedings. — Reynolds v. Collins, 78 Ala. 94; Betancourt v. Eberlin, 71 Ala. 462; Clark v. Few, 62 Ala. 243; 2 Brick. Dig. 480, §§71, 72. Neither the Avrit of garnishment, nor any proceeding in the suit against the defendant or garnishee were void, but were regular, on their face. In cases of this character, courts take no account of fractions of a day.

The court below committed no error in refusing claimants’ motion to exclude the garnishment.

Affirmed.