124 Ala. 448 | Ala. | 1899
— The contrary not being shown it will be presumed that the person mentioned in the officer’s return as “Stevens” is the same Stevens who is.mentioned in the writ. — Snelgrove v. Br. Bank, 5 Ala. 295. The motion to quash the return was upon the sole ground that it was made in the name of the deputy instead of the name of the constable. The record shows the return was properly signed in the name of the constable by the deputy.
The local laAV prevailing in beat 21 in Jefferson county (Acts 1884-5, p. 395) authorized the appointment of a deputy constable and empowered him to execute the writ-of garnishment.
The several motions and pleas Avhich Avere stricken out did not attack the return merely, but looked to the abatement of the entire suit. If under them a lack of service could have been shown, still the garnishee having
If the return had been directly attacked, upon the ground that the writ was not,in fact served, proof of that fact might have required that the return be set aside. In that case the writ would not have bound the garnishee on liabilities to the defendant not in existence when he appeared and answered though the suit Avould not have been defeated for lack of service. Being permitted to stand in force the return imports verity. — Dunklin v. Wilson, 64 Ala. 162. It must be considered as intercepting any liability' which was subject to garnishment betAveen its date and the time of making ánswer in the justice court and to the extent that the ansAver shows such liability judgment for the plaintiff was proper.
When the garnishee’s ansAver admits facts Avhich clearly establish an indebtedness to the defendants, such admissions will prevail over a mere general denial of such indebtedness contained in the ansAver, and Avill justify a judgment for plaintiff notwithstanding such general denial. — White v. Kohn, 103 Ala. 308. By this ansAver the garnishee admits that beginning before the service of the Avrit the defendant was in his employ to the time of answering in the justice court — a period of nearly two months — as well as afterwards; that of the agreed wages of $50 per month, .$40 Avas to be sent to the garnishee’s family for their support, and that “the agreement was to get groceries each day during the month,” ánd that under that agreement he had alíoAved the family to have groceries amounting to about $40 per month though he had paid no money. It clearly appears from the character of this agreement to the extent of forty dollars per month it was intended the payment should be made without regard to any counter-claim existing in favor of Stevens. A garnishee will not be allowed to reduce his liability by using as a set-off, a claim Avhich by reason of his agreement with the garnishee was not to be used in such reduction if no suit had been brought. — Archer v. Bank, 88 Ala. 249. Discarding the reserved ten dollars per month which it may be was subject to a set-off by defendant’s note, and discarding all
We do not construe the agreement in the answer as giving the garnishee the absolute right to pay any part of the wages in goods and therefore it was not necessary to observe the special form of judgment provided for by section 2192 of the Code.
The appeal though triable de novo involved only the subject-matter of the trial in the justice court and liabilities 'not accruing before the answer in that court were not a proper subject of inquiry in the city court. Henry v. McNamara, 22 So. Bep. 428; s. o. at present term. However no injury could have resulted from such inquiry since without such subsequent liability enough remained of prior liability to require the court to render the judgment appealed from.
The judgment will be affirmed.