Sevier v. Throckmorton

33 Ala. 512 | Ala. | 1859

WALKER, J.—

After the rendition of a judgment discharging the garnishee on his answer, the plaintiff and the garnishee went to trial on an issue, in which the former affirmed the incorrectness of the answer, and the latter asserted the contrary. A jury was empanneled, and the issue tried, without objection by either party; and a verdict was returned for the garnishee ; and thereupon a judgment was rendered for the garnishee. The garnishee must be understood to have waived the judgment of discharge upon liis answer, and the cause as continued in court by the act of the parties. The plaintiff, therefore, is not precluded from assigning errors upon the rulings of the court, on the trial of the issue before the jury, upon the ground that there was no cause in court. Byrd v. McDaniel, 26 Ala. 582.

[2.] Upon the trial of the issue as to the correctness of the answer, the answer of the garnishee was not evidence for him. The onus of proof is upon the party contesting the answer; but the statute does not make the answer evidence for the garnishee upon the trial of the issue. If it were, the garnishee would be a witness in his own case, without any corresponding privilege to the opposite party.

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