9 Ala. 91 | Ala. | 1846
1. The 25th section of the attachment act directs, that “ the plaintiff wishing to controvert the garnishee’s answer, may do so by making oath that he believes the same to be incorrect, whereupon an issue shall be formed, and tried as in other cases. [Dig. 60, $ 25.]
2. This conclusion shows that the court was in error in the charge given, as well as those refused, with reference to the issue as formed. But it will be seen, the issue itself is-irregular, in selecting a part only of the answer, as the matter intended to be controverted. In our opinion, the only proper issue, is one of indebtedness, vel non.
3. The evidence introduced by the plaintiff is not subject to the same exception as the issue tendered, because it at
4. It is supposed the judgment ought not to be disturbed, inasmuch as the answer of Massey is entitled to be considered as the transferee of the debt, and as such entitled to litigate with the plaintiffs the validity of the transfer, under the 40th section of the attachment law. This would be entirely proper, if the evidence before the jury had shown such a transfer; but it did not, and the answer being controverted, no such transfer as is there alledged to Dearing, and after-wards by him to Massey, can affect the cause as now presented. We have already said, if such a fact had been declared, it would have terminated the controversy; as, in that event, Massey would be entitled to notice as transferee. Here he is considered only as the garnishee, and in the aspect of a partner with Lockhart. The plaintiffs have elected to proceed against them as partners, and it is quite probable they could not be permitted to have a several judgment against both, or either. See Travis v. Tartt, 8 Ala. Rep. 574.
Judgment reversed and remanded-.
iD'p’ Decided at June term, 1845, and omitted by mistake.