Prudential Savings Bank v. Looney

65 So. 770 | Ala. | 1914

ANDERSON, C. J.

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 to hold said fund for a certain purpose. Moreover, before the judgment was rendered in the case, the plaintiff demanded and had an oral examination, and which said oral answer ■ is not set out by a bill of exceptions or otherwise, and it may be that said oral answer disclosed that there was no claimant to the fund other than the Grand Lodge, and that the garnishee did not hold it, or have right to hold it, for Mason & Hadnott, and that they did not claim said fund. We cannot therefore say that the trial court erred in rendering judgment in this case without first having Mason & Hadnott notified to come in and propound their claim. It is no doubt true that under our garnishment proceedings it is error to render judgment on the answer of the garnishee for the fund admitted, when the answer suggests a claimant to the said fund, without first notifying the alleged claimant and give him an opportunity to propound his claim (Donald v. Nelson, 95 Ala. 111, 10 South. 317), but the judgment in this case was not rendered until after the oral answer; and, in the absence of proof to the contrary we must assume that the trial court did not have Mason & Hadnott properly suggested as claimants of the fund before the rendition of the judgment. Indeed, the written answer was made by Hadnott as the agent of the garnishee, and was no doubt the person who answered orally for said garnishee, and as his oral answer is not set out, we will assume that he did not suggest himself and Mason as claimants of the fund.

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-meat of the case, during the existing term, placed the parties just where they were before the case was dismissed, and the garnishee was not finally discharged by the order of dismissal, as the cause was still within the control of the court. The case of Burgin v. Ivy Co., 127 Ala. 657, 29 South. 67, has no application to the reinstatement of the present case as that case dealt with a judgment in the justice court, wherein an attempt had been made to revive a judgment no longer in fieri. Here the matter was in fieri until the expiration of that term, of the circuit court.

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.

Mayfield, Somerville, and Gardner, JJ., concur.