51 So. 414 | Ala. | 1909
A judgment by default cannot be rendered against a garnishee who has fully answered and denied all indebtedness or liability. Garnishment is purely a statutory proceeding, and judgment by default against the garnishee is not provided for in our statutory proceedings; and certainly such judgment is unwarranted, after the garnishee has answered fully, as
The garnishee having fully answered, denying all indebtedness or liability to the defendant, and the plain-til ff having controverted the answer of the garnishee, by making oath that “he believes it to be untrue,” as provided by section 4325 of the Code, an issue should have been made up under the direction of the court, in which the plaintiff alleged in what respect the answer was untrue; and if required by either party a jury may be impaneled to try such issue. If the issue is thus made up under the direction of the court, and the plaintiff alleges in what respect the answer is untrue, and the garnishee should, after proper notice, fail to enter into or proceed with the contest, a judgment nil elicit could probably be rendered against him; but certainly a judgment by default should not be rendered against him, before an issue is made up and without the plaintiff’s alleging in what respect the answer is untrue, because the statute requires this much to be done before any judgment
When the answer of the garnishee is contested by plaintiff, he must tender an issue, and until that issue is tendered he cannot claim a judgment by default. The answer denying all liability or indebtedness, of course no judgment could be rendered on it against the garnishee for any amount. The mere fact that it was controverted only authorized a contest, not a judgment by default. The plaintiff is then in no better condition against the garnishee than it would be against a defendant whom he had brought into court, but against whom he had filed no declaration or complaint. As was well said by Chief Justice Stone, in the case of Lehman-Durr Co. v. Hudson Bros., 79 Ala. 535: “Garnishment is a suit, but not for the collection of a debt due from the garnishee to the plaintiff.” It asserts no such claim. It is a proceeding by which a debtor’s dues are attached and made liable to his debts. Ordinary judgment by default and writ of inquiry executed are not adapted to its administration.
It is unnecessary to pass upon the other questions. They have in each case been Avaived, or are unnecessary to a. decision. The judgment is reversed, and the cause is remanded, on the authority of Lehman-Durr Co. v. Hudson Bros., supra, and Elmore v. Simon, 67 Ala. 526.
Reversed and remanded.