Southern Ry. Co. v. Funke, 44 So. 397

Southern Ry. Co. v. Funke

44 So. 397 | Ala. | 1907

McCLELLAN, J.

It is manifest that the appellee cannot complain of the action of the Morgan county justice in setting aside the judgment rendered in favor of the plaintiffs Emens & Co., against the defendant Vaughan, or the garnishee therein, the appellant here. He was not, at the time of rendition of the judgment or at the time it was set aside, a party thereto or in any wise bound therein or thereby. If Emens & Co. saw fit to acquiesce in or consent to the setting aside of their judgment in the premises, no right of this appellee was infracted. So far as the appellee was then concerned, that action was res inter alios acta.

It is averred in the pleas that after the annulment of the original judgment, and after suggestion by the garnishee of the appellee as a claimant of the fund, and *517after service of notice on the suggested claimant (ap-pellee), be appeared generally and secured a continuance of the proceeding. He cannot now be permitted to try his alleged rights in another action. He should have availed himself of the opportunity afforded him by the Morgan county court; and the judgment rendered by that court concluded him, unless on appeal, or proceeding in that nature, that judgment was avoided.

It results that the appellant’s pleas, asserting the defense discussed, were a complete bar to appellant’s action on the assignment, and that the demurrers thereto were’ improperly sustained. Accordingly the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.