Birmingham Loan & Auction Co. v. First Nat. Bank

• Decision Date: 13 November 1893
• Citation: 100 Ala. 249,13 So. 945
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM LOAN & AUCTION CO. v. FIRST NAT. BANK OF ANNISTON.

13 So. 945

100 Ala. 249

BIRMINGHAM LOAN & AUCTION CO. v. FIRST NAT. BANK OF ANNISTON.

Supreme Court of Alabama

November 13, 1893

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Garnishee proceeding by the First National Bank of Anniston against the Birmingham Loan & Auction Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Plaintiff obtained a judgment against one A. Goetter for $100 in a justice of the peace court. On this judgment the plaintiff sued out a writ of garnishment, in which the Birmingham Loan & Auction Company was named as garnishee. The answer of the garnishee, as reduced to writing by the justice of the peace before whom the answer was made, recited that the Birmingham Loan & Auction Company appeared by its manager, S. Kaufman who, being duly sworn, denied any indebtedness to Goetter. The plaintiff contested this answer, and, on the trial of the contest before the justice of the peace, judgment was rendered against the garnishee for the amount of the judgment and costs. Appeal was taken from this judgment to the Birmingham city court, and on the cause being called for trial, before the defendant announced "Ready," A H. Benners, an attorney, as amicus curiae, moved the court to dismiss the cause "because the said garnishee is a fictitious person;" the Birmingham Loan & Auction Company being neither an individual, partnership, nor corporation. It was proven, on the testimony of one Umbenhauer, that he was an employe of S. Kaufman, and was during the time covered by the garnishment; that during such time the Birmingham Loan & Auction Company was the name under which S. Kaufman did business; that he had no partners; and that the Birmingham Loan & Auction Company was not a corporation. The court overruled this motion, and the said A H. Benners, as amicus curiae, excepted to the ruling of the court. On the trial of the cause, proof was made by plaintiff of notice to A. H. Benners, as attorney of record for the Birmingham Loan & Auction Company, to produce its books of accounts in evidence, and, the same not being produced, the plaintiff introduced one W. T. Poe, who testified that this cause was first tried before him as justice of the peace that he knew said Goetter, and that he worked for the Birmingham Loan & Auction Company during the time covered by the garnishment; that, upon notice by plaintiff to the Birmingham Loan & Auction Company, its books were produced in evidence on the trial before him, said Poe, and upon examination of the same they showed an account with A. Goetter, in which entries were made, showing that, during the time covered by the garnishment, the said Goetter had been paid by the Birmingham Loan & Auction Company $400. The garnishee objected to the witness testifying as to the contents of the book on the ground that it "was secondary evidence, and no witness had been subpoenaed duces tecum to produce the books, and because it was oral evidence of garnishee's answer, which was in writing, and which would appear in the written transcript of the justice of the peace court." This objection was overruled, and the garnishee duly excepted. This being all the evidence, the court, hearing the cause without the intervention of a jury, rendered judgment for the plaintiff, to which ruling of the court the garnishee duly excepted.

A. H. Benners, for appellant.

A. E. Barnett, for appellee.

HARALSON J.

1. An amicus curiae, in practice, is one who, as a stander-by, when a judge is doubtful or mistaken in a matter of law, may inform the court. Bouv. Dict. "He is heard only by the leave and for the assistance of the court, upon a case already before it. He has no control over the suit, and no right to institute proceedings thereon, or to bring the case from one court to another by appeal or writ of error." Martin v. Tapley, 119 Mass. 116; 1 Lawson, Rights, Rem. & Pr. p. 262, § 156.

2. The attorney for the garnishee, as amicus curiae, moved to dismiss the suit on the ground that it was a fictitious one and the garnishee was a fictitious person. The court overruled the motion, and, as amicus curiae, the attorney excepted. The...