1 Ala. 38 | Ala. | 1840
— If the written answer transcribed into the record can he looked to, it is clear that the County Court erred in rendering a judgment against the garnishee. It does not admit an indebtedness: it merely states that two of the defendants in the original judgment were prosecuting a suit against him on a promissory note which he had given to a third person; but that he had received a notice from the pa3’ee, that it had never been transferred, and was still his property.
In Robinson v. Rapelye & Smith, (2 Stew’t. Rep. 86), it was held that it roust he intended that the answer of a garnishee is true where a denial is not interposed in the manner pointed out by the statute. In that ease the garnishees admitted that they were once indebted to the defendants in attachment; but that they had been notified by certain persons styling themselves assignees of tho defendants, that the demand had been assigned to them. To entitle the attaching creditor to a judgment
It is however objected, that the paper purporting to be the plaintiff’s answer to the garnishment cannot be regarded'as a part of the record, because it is not made such by bill of exceptions, or in any other manner.
The statute directs that the garnishee upon the return of the summons shall answer upon oath, what he is indebted, &c.; and contemplates an examination as to his indebtedness, &c. Though the statute does not in express terms require this examination to be made in open court, yet it is clear from the nature of the inquiry, that it should be there made, unless it is waived by the party interested. (Aik. Dig. 42 and 43.)
In the case before us the judgment recites that the garnishee bad filed his answer, and that the defendant in error consent ted to receive the same. Here is a direct waiver of an examination of the garnishee before the Court, and an admission that bis answer had been filed and was received. We must then suppose, in the absence of any thing of record, from which to deduce an opposite conclusion, that their answer embodied in the “transcript is that which the judgment recites as its basis.
Besides; we are aware that a practice has grown up under this statute, of receiving the answer of a garnishee in writing without subjecting him to an examination in Court, unless the party summoning him is persuaded that the answer is not a full disclosure of facts. This practice, coeval with the statute, furnishes a warrant for taking the answer as a part of the record, when the judgment affirms the fact that it was received and filed.
Our conclusion is, that the judgment of the County Court of Montgomery must be reversed, and the case remanded.
