Ross v. Pitts

39 Ala. 606 | Ala. | 1865

PHELAN, J.

This was an action by Pitts, appellee, against Ross, appellant, founded on a promissory note given by Ross to one Arledge. The defendant below pleaded non assumpsit, payment, and set-off. To maintain his defense, he offered to show that the note in suit had been transferred, before action brought, to one Reynolds, against whom an attachment bad been sued out by one Murpliy, and that he, defendant, had been garnisheed to answer what he was indebted to said Beynolds; that he made answer that he had made the note'in question to one Arledge, who had transferred it to said Beynolds; and that Murphy, after haying obtained his judgment in the attachment suit against Beynolds, obtained judgment against said defendant, for the amount of the note, on his said answer as garnishee. To proye these facts, he proposed to introduce the record of the attachment suit of Murphy against Beynolds, as defendant in the attachment, and of the proceedings against him as garnishee, standing connected with it. He also offered to proye, by Arledge, that in March, 1857, he (Ar-ledge) owned said note, and sold and transferred it to Bey-nolds ; and also that he (the defendant) had paid to Murphy, on the 4th of October, 1858, the judgment rendered against him as garnishee as aforesaid. The defendant offered the foregoing testimony, that is, the transcript and the parol proof, in connection. “The plaintiff objected, because it was not relevant to the issue.” The court sustained the objection, and ruled out the testimony; and the defendant excepted.

To make his defense complete, it was necessary for the defendant to show, by the best evidence, the facts upon which that defense rested. These facts were, that he had. been lawfully garnisheed as the debtor of Beynolds, who was sued in attachment by Murphy, and that a judgment had been regularly rendered against him on said garnishment, as maker of said note. The transcript of the record in the suit by Murphy against Beynolds, and the judgment against the defendant in connection therewith as garnishee, was the best evidence that could be adduced of these facts, and was, therefore, not only competent testimony, but indispensable to the defense. The distinction between the admissibility of a record or judgment as a fact, and as tending to establish ulterior facts, is well established.—1 Greenleaf’s Ev. §§ 538, 539; also, Harrell v. Whitman, 20 Ala. 519.

The offer to prove by Arledge, that he had sold and transferred the note to Beynolds, and that defendant had paid the judgment rendered against him as garnishee, was also, under the plea, clearly competent, and should have been ~tl1owed.

The judgment below, is reversed, and the cause remanded.