Archer v. People's Sav. Bank

• Decision Date: 18 December 1889
• Citation: 88 Ala. 249,7 So. 53
• Parties: ARCHER v. WHITING.
• Court: Alabama Supreme Court

7 So. 53

88 Ala. 249

ARCHER v. WHITING.

Supreme Court of Alabama

December 18, 1889

Appeal from circuit court, Mobile county; WILLIAM E. CLARKE, Judge.

This was a garnishment proceeding. The appellant, Archer recovered a judgment against a firm, of which J. W. Whiting was a member, in May, 1885, and on that judgment made affidavit, gave bond, and had the garnishment in this case served on the People's Savings Bank on July 20, 1885. In response to this writ of the garnishment, the garnishee People's Savings Bank, filed its answer in writing December 16, 1885. On motion of the plaintiff, the court made an order requiring the garnishee to answer further in open court, and continued the cause for such answer. In obedience to this order of the court, the garnishee, by agreement of counsel, filed another further answer in writing to certain questions propounded to it by the plaintiff, on June 14 1888. The answers were contested, and issue thereon was duly made. These answers show that the defendant, Whiting, was elected president of the garnishee corporation; that said position is an annual salaried office; that its term is one year from the date of each annual election; that Whiting was first elected to that office on February 5, 1884, to fill the unexpired office of one Peter Stark, and that he had been elected to that office either on the 1st or 2d of July of each year since. The third by-law of the garnishee, which pertains to the election of officers, is in the following language: "The directors shall elect from their number a president, vice-president, and such other assistants as are necessary, said assistants to hold their office at the pleasure of the directory. The directors shall fix all salaries, and require such bonds for the faithful performance of duties as they may deem best." When Whiting was first elected on February 5, 1884, the amount of his salary was not fixed; but, by a resolution of the board of directors adopted February 9, 1884, the salary of the president was fixed at $200 per month from the 1st of February, 1884. On November 19, 1884, said Whiting asked the consent of the board of directors to be allowed to draw his salary a week in advance which consent was granted by the board. Upon his re-election on July 1, 1886, his salary was increased to $3,000 per annum; and upon his re-election on July 1, 1887, his salary was again fixed at $3,000 per annum. On July 31, 1885, 11 days after the service of the writ of garnishment on the People's Savings Bank, the board of directors of the garnishee, at the request of Whiting, adopted a resolution to the effect that the garnishee enter into a written contract with Whiting to the effect that, so long as he should remain the president of the bank, it will pay him weekly, in advance, his salary as such president: provided, that the bank may at any time, upon one month's notice to him, revoke this resolution, and cancel such contract; and on the same day the terms of said resolution were embodied in a written instrument, and was signed and executed by Whiting and a duly-authorized agent of the bank. Attached to the answer of the garnishee, in response to a demand by the plaintiff, there were statements showing the dates at which J. W. Whiting drew his salary. It was contended by the plaintiff that these statements showed that Whiting did not always draw his salary in advance, but sometimes after the same had been earned, and that, too, after the service of the garnishment. The answer of the garnishee also alleged that when the writ of garnishment was served on it Whiting was indebted to the bank in the sum of $7,982.61, for which they held specified collaterals as securities. This amount had been reduced, when the second answer was filed, to a balance of $7,170, by the proceeds of such collaterals. But the answer further states that there was no contract between Whiting and the bank that the salary of the former should be subject or should not be subject to the satisfaction of this indebtedness of his to the bank; but, on the contrary, the bank had not attempted to nor had it retained any part of his salary on account of this said indebtedness. Upon this evidence, the court charged the jury, at the request of the garnishee, that, "if the jury believe the evidence, they must find for the garnishee." The plaintiff excepted to this charge, and now appeals from the judgment rendered by the court, and assigns the same as error.

J. Little Smith, for appellant.

Clarke & Webb and Pillars, Torrey & Hanaw, for appellee.

SOMERVILLE J.

If the garnishee, at the time of service of the garnishment, or at the time of making the answer, or at any time intervening between these two periods, was indebted to the defendant Whiting, or if there was then existing a valid and binding contract by which such indebtedness would accrue in the future, this debt, unless exempted from legal process, was subject to garnishment, and the garnishing...