Price v. Thomason, 11 Ala. 875

Price v. Thomason

11 Ala. 875 | Ala. | 1847

COLLIER, C. J.

In Presnall v. Mabry, 3 Port. R. 105, this court say, “It is a clear principle of law, that a judgment cannot be rendered on the answer of a garnishee, a*878gainst him, unless there is a distinct admission of a legal debt, either due or to become due by him to the defendant in the original suit.” And where the garnishee answered, that he was indebted to the defendant in attachment by note, but had sets off, and could not know until a settlement was had, how the balance was, it was held that the plaintiff could not have judgment. [1 Stew. R. 9.] So where the garnishee admitted that he was indebted to the defendant in attachment in a certain sum to be discharged in store accounts, then due, a judgment against him was refused — this court remarking, that the plaintiff’s remedy was in equity to have the accounts assigned and collected for the satisfaction of his judgment. [Smith v. Chapman & Brothers, 6 Port. R. 365; see also, 1 Ala. R. 421.] In Scales v. Swan, 9 Port. R. 163, it was said the court was not bound to receive a written answer — the statute giving to the plaintiff, if he desires it. the right to examine the garnishee in open court; although, for the sake of convenience and despatch of business, suck an examination may be waived. The court however is not bound to receive any evasive written answer, but may consider it a nullity, and enter an interlocutory judgment. Where the defendant moves for judgment upon the written answer filed by the garnishee, it will be inferred that he accepted it, and waived an examination in open court. [Leigh v. Smith, 5 Ala. Rep. 583.] And if, instead of being active, he permits the court without objection, to render a judgment discharging the garnishee, he must be held not to have intended to controvert its truth, and dispensed with any further examination.

Here the first judgment which was rendered, discharged the garnishee, although it does not set out his answer in ex-tenso, affirms that he has filed his answer, which was the basis of the judgment in his favor. This is quite sufficient to authorize us to look to the answer found in the transcript as a part of the record. [3 Ala. R. 114; 4 Id. 385; 5 Id. 583; 6 Id. 73.] The material question then is, would the court ' have been warranted upon the answer in rendering a judgment against the garnishee. Where a garnishee admitted that he was indebted to the defendant in the sum of $800, from one to two hundred dollars of which was discharged in *879saddlery, it was held that the plaintiff was not entitled to an unconditional judgment against the garnishee for eight hundred dollars; but the question is asked, if the court could have delayed proceeding to afford the garnishee opportunity to deliver the saddlery according to his contract; or could the entire debt have been condemned with a reservation to the garnishee of the right to deliver the saddlery to the sheriff, and fro tanto discharge the judgment. [5 Ala. R. 648 ; see also 6 Ala. R. 818.]

The answer in the present case cannot be considered so evasive and indirect as to have required the court to reject it, if there was no objection to its reception by the plaintiff. The garnishee states his purchase from the defendant in attachment, the price agreed, and how and when it was to be paid, affirms, without expressing the amount of the incumbrance, that, the debts intended to be secured exceeded the value of the slaves and other property. He affirms that the bonds given for the purchase money were payable in cash, or in liabilities against the defendant, of which the garnishee might become the proprietor. He had paid some debts of the defendant, but the amount he could not state. It is further answered, that the incumbrance of the deed of trust still continues, and that the debts, or a part or them, provided for by it are yet unsettled ; and until this incumbrance is removed, he does not consider that he owes any thing to the defendant.

We think that it cannot be assumed, in respect to this answer, that it was intentionally evasive, and was framed with the view of avoiding a legal responsibility. True, the answer should have stated with precision the amount for which the property was incumbered, the balance due thereon, if the garnishee was aware of it, and the amount of liabilities against the defendant, which he had extinguished. Yet the omissions in this respect may be attributed to some other cause than an intention to deceive or impose on the plaintiff, or the court.

The plaintiff, as the record affirms, must be presumed to have been in court when the answer was made, and if dissatisfied with it, should have examined the garnishee, or controverted its truth. It was certainly the duty of the court, *880if our previous decisions are to be followed, to have rendered the judgment in favor of the garnishee. In the predicament of the record, the acceptance of the answer without oN jection, must be intended.

There is nothing in the record to indicate that the garnishee ever amended his answer, either by adding to, or substituting another in its stead. The only change in the record, after the garnishee was discharged, was to set out his answer at length nunc pro tunc, in the judgment; and this appears to have been done on the plaintiff’s motion. But if this amendment had been made at the garnishee’s instance, whether properly or not, it was altogether harmless, and would furnish no ground for the reversal — the reference to the answer in the judgment as originally rendered, we have seen, made it a part of the record, and copying it into the judgment entry could do no more. The judgment of the circuit court is consequently affirmed.