Byrum v. Pharo

• Citation: 240 Ala. 564,200 So. 622
• Decision Date: 20 February 1941
• Docket Number: 6 Div. 817.
• Parties: BYRUM ET AL. v. PHARO.
• Court: Supreme Court of Alabama

200 So. 622

240 Ala. 564

BYRUM ET AL. v. PHARO.

6 Div. 817.

Supreme Court of Alabama

February 20, 1941

Appeal from Circuit Court, Blount County; J. H. Disque, Jr., Judge.

Garnishment suit by A. N. Pharo against B. S. Byrum, defendant, and Wilma Decker, garnishee, in which J. M. McGill and others propounded claims to the funds in the garnishee's hands. From a judgment for plaintiff, defendant and claimants appeal.

Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

R. G Kelton, of Oneonta, for appellants.

J. T Johnson, of Oneonta, for appellee.

BROWN Justice.

The appellee, Pharo, a judgment creditor of B. S. Byrum, sued out a writ of garnishment on his judgment citing Wilma Decker as garnishee. The garnishee answered that she was indebted to the judgment defendant in the sum of two hundred dollars, alleging that she had been notified that J. M McGill, J. M. Ratliff, Enos C. Lewis and F. M. Burns claimed title to or interest in money in her hands, which she payed into court.

The clerk of the court thereupon issued notice to said claimants to appear within thirty days after service of the notice and propound their claims, as required by § 8079 of the Code 1923.

Said claimants appeared and propounded their claims in writing and under oath as provided by § 8080 of the Code, claiming the money paid into court.

The plaintiff in judgment made separate motion to strike each of said claims on numerous grounds, some of which were "speaking grounds"; stating facts not apparent on the face of the pleading, such as, "Because no claim has been filed in the Probate Office seeking to establish a lien on the said building of the said Garnishee." The court granted said several motions and struck said claims from the files, and directed that the money paid into court be applied to plaintiff's judgment and the costs. This was a final judgment from which intervenors had a right of appeal. Thornton v. Highland Avenue & Belt Railroad Co., 94 Ala. 353, 10 So. 442; McKenzie v. Jensen, 195 Ala. 36, 70 So. 678; McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917.

The statute § 8080, supra, provides that if the claimant "appears, he must be required to propound his claim in writing, and make oath thereto upon which the plaintiff must take issue in law, or in fact, and the issue in fact must be tried by a jury, if required by either party." (Italics supplied.)

The term "take issue in law" is well understood legal phraseology meaning that if the pleading filed by the claimant is in form of good pleading, yet insufficient in averment to state a valid claim its sufficiency must be tested by demurrer, pointing out the defects, so that if the demurrer is sustained the intervenor may amend or suffer judgment. That has been the practice. Anderson & Co. v. Jones, 102 Ala. 537, 14 So. 871; Clark & Coleman v. Few, 62 Ala. 243; Diamond Rubber Co. v. Fourth National Bank, 171 Ala. 420, 55 So. 100.

It is well settled that "when a pleading, though not frivolous, * * * is...