13 Ala. 296 | Ala. | 1848
1. It is provided by statute, that “ any person aggrieved by the judgment of any justice of the peace may, within five days thereafter, appeal to the next circuit or county court, sitting for his county, first giving to such justice bond with good security, in double the amount of such judgment, conditioned to prosecute such appeal with effect; and in case he be cast therein, to pay and satisfy the condemnation of the court.” Clay’s Dig. 314, § 9. This enactment is perfectly plain and intelligible in its requirements, both as to the time within which the appeal may be prayed for and a bond executed; yet we apprehend that the time will not begin to be computed, until the judgment has received the final action and approbation of the justice. Whether he is authorized to grant a new trial or not, if he entertains a motion for that purpose, or improperly sets his judgment aside, and afterwards reinstates it, in either case it is competent to execute a bond for an appeal within the time prescribed by the statute, after the final determination of the justice is made known. For then, and not sooner, does the officer rendering the judgment consider it final. Upon this hypothesis the bond was executed in due season,
2. The act of 1840 enacts that when a garnishee shall answer that he has received notice of the transfer of the debt or property in respect to which the garnishment issued, the court shall not render judgment against the garnishee on the ground of the invalidity of such transfer; but shall suspend proceedings against the garnishee, and a notice shall issue to the party to whom the transfer is alledged to have been made, calling upon him to contest its validity with the plaintiff ; and if the question shall be determined against the party claiming the debt or property alledged tobe transferred, then the court shall render final judgment against the garnishee. The right of appeal, &c. is reserved to the garnishee and all parties contesting the question. Clay’s Dig. 63, <§> 39, 40. These provisions, like every other portion of the attachment law, are remedial and beneficial, and must receive a construction which would promote rather than restrict their operation ; and which would expedite and cheapen litigation. Within their spirit and meaning, one may be said to be the transferee of a debt, whom the garnishee answers, claims it as his own, and he is unable to determine whether such person or the plaintrff debtor is entitled to receive it. Within this principle the plaintiff in error very clearly comes, and it follows that he was properly brought in as a- party litigant.
3. The case cited from 8 Ala. Rep. 811, is one in which the defendant in the judgment controverted the truth of the garnishee’s answer. In such case, it was said that the defendant should not only make an oath that he believed the answer to be incorrect, but as the mode and manner of the garnishee’s indebtedness must be known to him, the suggestion should be as ample as a declaration in ordinary cases, and an issue formed by a denial by the garnishee of the allegations against him. But this stringent rule cannot be applied where the plaintiff controverts the answer of the garnishee, or the right of a transferee to the debt admitted. The plaintiff cannot be supposed to possess such exact information in respect to the indebtedness, and it will be quite enough for him to re-assert that the garnishee is indebted, &c. or conceding the answer to be true, denying that the as
4. It is not allowable to prove by reputation, that a party who had been in possession of land, occupied it as a tenant and had no title. These are facts susceptible of proof by evidence more satisfactory and definite.
5. The question proposed to Mrs. Chidsey on cross-examination was sufficiently specific to lay a predicate for the examination of other witnesses, if she answered in the negative. It referred to a conversation held by her with a person named, at a place designated, in a certain year. 1 Ala. Rep. N. S. 65. The question cannot with propriety be said to be the introduction of a collateral inquiry, nor is it objectionable upon the ground that one person cannot be affected by the declaration, of another made when the former was not present. Mrs. Chidsey, as we understand it was called to establish, among other things, the right of the plaintiff in error to the rent of certain real estate for the year 1845; and the questions proposed to her, and the discrediting witnesses, were intended to destroy the effect of her testimony, by proof that she had promised to pay debts from the rent falling due that year. We do not suppose it was intended to make her declarations evidence beyond the point indicated, and thus far they were clearly admissible.
6. It cannot be assumed, from the mere fact that a bond for titles to real estate is made to a married woman, that it is therefore her separate estate, to the exclusion of her husband. At least such an assumption cannot be indulged at law. If therefore' property thus situated is occupied by tenants, the husband may sue for and recover the rent, and the tenants may be summoned as garnishees by the husband’s creditors. If the wife have equitable rights, she may assert them in a court of equity.
7. It is said if the jury should ascertain that a witness is incorrect in his testimony as to one or more facts, yet if he is not corruptly so, but is merely mistaken in judgment, or by reason of a failure of memory, the witness is not discredited further than would arise from a want of reliance on the correctness of his conception, or from a distrust in his powers of memory; and if the jury think proper, they may believe him
8. An issue having been made up in the circuit court and submitted to a jury, who returned a verdict, it is too late to object here for the first time, that the judgment of the justice on which the garnishment is founded, or a substitute for it, is not shown by the record. If the objection had been made in the court below, the judgment would most probably have been supplied.
The error in the seventh point noticed, exists independently of the question of Mrs. Chidsey’s competency. It is not allowable now to object that she is incompetent; if the objection had been made in the circuit court, perhaps other testimony, unexceptionable in point of law, might have been adduced. We have only to add, that the judgment is reversed, and cause remanded.