47 So. 136 | Ala. | 1908
When this cause was here upon former appeal (147 Ala. 434, 41 South. 811) we held that the plea of res adjudicata interposed by Dimmick was sufficient, and as its averments were admitted he was entitled to his discharge. We are still of the opinion that the judgment rendered, discharging him upon the denials of his answer, was conclusive on this particular creditor (Roman), and that there was nothing owing from Dimmick to the Montgomery Iron Works. ITad the complainant contested the answer, there could be no question as to the conclusiveness of the judgment. On the other hand, when the garnishee filed his sworn answer denying indebtedness, the plaintiff had the right to contest it, and, failing to do so, he in effect conceded that it was true, and the garnishee was entitled to his discharge. — Hurst v. Home Insurance Co., 81 Ala. 174, 1 South. 209. And a judgment so rendered was an adjudication by the court as to an indebtedness vel non. It was a finding upon the only issue involved in the controversy, and was to all intents and purposes, a judgment upon the merits. It is true that a judgment of nonsuit or dismissal in a garnishment case would con
The creditor makes the only issue the law contemplates, by making the affidavit which is the institution of the suit, and which charges the garnishee with being indebted, etc., to the debtor. If the garnishee admits the charge by his answer, the plaintiff would be entitled to a judgment against him, and there would be no room to question the conclusiveness of the judgment. If he denies the indebtedness, that merely puts upon the plaintiff the burden of proving his charge, which he can do by contesting the answer, and failing to do so is no failure to present an issue, as the issue was previously presented, but is a declination on his part to prove the one and only issue involved. And a judgment rendered for the garnishee would be as conclusive as one rendered for the plaintiff, when the indebtedness was admitted by the answer. Our court, in the case of Steiner Bros. v. First National Bank, 115 Ala. 379, 22 South. 30, speaking through Brickell, C. J., in discussing judgments in garnishment suits, and the effect of same, says: “A garnishment, as it has often been defined and described in the course of judicial decision, is The institution of a suit by a creditor against the debtor of his debtor, and is governed by the general rules applicable to other suits adapted to the relative situation of the parties.’ — 1 Brick. Dig. p. 173, § 276. Such being
The decree of the city court is affirmed.