65 So. 770 | Ala. | 1914
The final answer of the garnishee of November 8, 1912, and the amendment thereto, as appears in the jurat of November 29, 1912, sets up the Grand Lodge as the owner or claimant of the fund in its hands, and notice seems to have been properly issued to said Grand Lodge, which came into court and filed its claim as authorized by the statute, and there seems to have been a trial of the right to the fund between it and the plaintiff, resulting in a judgment for the plaintiff. It is true that the answer of the garnishee, after setting up that the fund belonged to the Grand Lodge, does recite that it was deposited with it to be held as an indemnity to Mason & Hadnott. This did not suggest Mason & Hadnott as claimants-of the fund, but, in effect, set up that it, the garnishee, had the right
The trial court had the right, during the term of the dismissal, to reinstate the case upon motion and a proper showing by the plaintiff. The judgment reinstating the cause recites that the plaintiff had made a motion to set aside the order of dismissal and reinstate the cause, and presumptively the rules of practice as to the notice of the motion were observed and the reinstate-
While the judgment entry recites the issuance of two writs of garnishment, there is nothing to indicate that the said judgment was rendered upon the first instead of the second writ, and presumptively, if the last one Avas in force and the first one Avas functus officio, the court proceeded under the proper one, and for aught that appears the oral answer and the proof before' the court fully supported the judgment.
The judgment against the garnishee is defective, as it fails to recite the fact and amount of the judgment against the defendant, and Avhich said defect must reverse this case.—Faulks v. Heard, 31 Ala. 516; Chambers v. Yarnell, 37 Ala. 400. This is an irregularity, however, that is amendable at a subsequent term of the trial court upon a motion nunc pro tunc.—Jones v. Mainer & Son, 102 Ala. 676, 15 South. 437; Whorley v. M. & C. R. R., 72 Ala. 20.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.