Bessemer Sav. Bank v. Anderson

• Decision Date: 28 June 1902
• Citation: 32 So. 716,134 Ala. 343
• Parties: BESSEMER SAV. BANK v. ANDERSON.
• Court: Alabama Supreme Court

32 So. 716

134 Ala. 343

BESSEMER SAV. BANK v. ANDERSON.

Supreme Court of Alabama

June 28, 1902

Appeal from city court of Bessemer; James Trotter, Special Judge.

Action by M. E. Anderson against the Bessemer Savings Bank. Judgment for plaintiff, and from an order overruling a motion for a new trial, defendant appeals. Affirmed.

Upon the introduction of all the evidence, the court at the request of the plaintiff gave the general affirmative charge in her behalf. To the giving of this charge the defendant duly excepted.

There were verdict and judgment for the plaintiff. Thereafter the defendant moved the court to grant it a new trial, upon the grounds that the verdict was contrary to the law and the evidence, that the court erred in giving the general affirmative charge in favor of the plaintiff, and "because the charge given the jury was not signed by the judge and marked 'Given' as required by law." This motion was overruled, and the defendant excepted.

Pinkney Scott, for appellant.

Ward &amp Drennen, for appellee.

HARALSON J.

R. W Anderson was sued in the justice's court March 26, 1900 by J. H. Johnson, and judgment was rendered against him therein March 31, 1900, in favor of the plaintiff, for $57.51. To collect this debt, the plaintiff garnished the Bessemer Savings Bank. The garnishee, on April 5, 1900 appeared on summons, and answered an indebtedness of $410. It did not set up in its answer, that the plaintiff in this suit, claimed said fund. The proof, on the part of plaintiff showed, without dispute, that the garnishee was notified by the defendant, R. W. Anderson, and by the plaintiff, before it made answer to the garnishment writ, that $370 of the fund garnished belonged to the plaintiff. The garnishee, according to plaintiff's evidence, afterwards paid $310 to the plaintiff, leaving in its hands $60, which plaintiff claimed, and which this suit is brought to recover. The proof also showed, without conflict, that the money in the hands of the bank, had been deposited therein, by R. W. Anderson to his individual credit, but he and the plaintiff, his wife, both testified, and there is no proof to the contrary, that the money belonged to the plaintiff; and the proof also shows without dispute, that when said R. W. Anderson made the deposits, he informed the cashier, that the funds belonged to the plaintiff, except $40 of it.

It was also shown that proceedings in bankruptcy had been instituted in the United States bankrupt court against said R. W Anderson, but that the same had been dismissed by the order of that court, on the 7th July, 1900, at said Anderson's cost. The proof also tends to show, that these costs, amounting to $40.15, were paid to the clerk of that court by the garnishee, on the 12th July, 1900, but it is not shown that the same were paid by any judgment against the garnishee, nor by the order of said R. W. Anderson. It further appears, that the garnishee paid to the justice of the peace in said garnishment proceeding against it, on the 10th July, 1900, the sum of $59.85, these two amounts making $410, the sum admitted by garnishee to be in its hands belonging to said defendant R. W. Anderson, but it appears, that no judgment in said justice's court had been rendered against garnishee for that, or any other sum, nor did it appear, that the same was...