Oliver v. Atkinson

2 Port. 546 | Ala. | 1835

By Mr. Justice Hitchcock :

William Atkinson obtained a judgment in the Circuit Court of Dallas county, against A. C. Deweese, at the March term, 1832, of said Court for one hundred dolíais, and on the 20th day of August following, the plaintiff made an affidavit before a Justice of the Peace, that the defendant had no property within his knowledge whereof to make the money, but that Benjamin Mott, Charles Votey, and John Oliver, were indebted to him, &c.; upon which a summons of garnishment was issued against them. The two first answered, and admitted assets to a small amount. Oliver did. not appear. On the eighth July, 1833, a notice was served on him to show cause why a judgment nunc pro tunc, should not be entered against Mm for Ms default in not appearing to answer the summons; and at the fall term, 1833, of said Court, a judgment nunc pro tunc, was entered ; upon which a sci.fa. issued, returnable to the Spring term, 1834, of said Court. At that term, Oliver appeared and made answer, “ that in his absence from home one day, the defendant, A. C. Deweese, deposited with the wife of said Oliver $45 in silver, of which his wife informed him on his return home the same evening; and after' dark of that day, after returning home, a garnishment was served upon him. Next day he saw Deweese, and conversed with him on the subject; and he, Deweese, informed him, that the money was, public money, belonging to the United States Post Office Department, and that he had deposited it with the wife of said Oliver for safe keeping until he could pay it over. The money is still in the hands of said Oliver. He states, that he knows Deweese very well: he is poor, and has little or no money, except that which he receives as Post Master at Pleasant Hill. He believes the money belongs to the United States, and he knows of no other property,” &c. Upon this answer, a judgment was entered up against Oliver for forty-five dollars; to reverse which, the case has been brought here.

Several assignments were made; only one of which will be noticed, which is considered decisive of the case, (all the others are considered as waived by the appearance and answer of the garnishee,) to-wit: “ that the amount for which judgment is taken, is stated to be ascertained by an answer filed by Oliver, when the facts in the answer do not authorise a judgment against the garnishee.”

The statute upon which this proceeding is predicated,^a declares “that it shall be lawful, upon the appearance and examination of the garnishee to enter tip judgment, and award execution against him for all sums of money acknowledged to be due to the defendant, from him”

There was certainly no admission here, by Oliver, of his indebtedness to Deweese. He states the circumstances under which the money was received, and concludes by stating his belief that the money belonged to the United States. This statement being made under oath, must be taken to be true, until controverted by the oath of the plaintiff, when an issue is to be made up and tried, as in other cases.

The judgment must therefore be reversed, and the causé remanded.

a Aik. Dig. 42