Birmingham Nat. Bank v. Mayer

• Decision Date: 27 November 1894
• Citation: 104 Ala. 634,16 So. 520
• Parties: BIRMINGHAM NAT. BANK v. MAYER ET AL.
• Court: Alabama Supreme Court

16 So. 520

104 Ala. 634

BIRMINGHAM NAT. BANK v. MAYER ET AL.

Supreme Court of Alabama

November 27, 1894

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by S. C. Mayer against one J. Galatoire, in which the Birmingham National Bank was summoned as garnishee. There was a judgment for plaintiff, and garnishee appeals. Affirmed.

On the 18th day of May, 1892, S. C. Mayer commenced suit against one John Galatoire in the circuit court of Jefferson county Ala., and, making affidavit and giving bond, sued out a writ of garnishment, which was served on that day on the Birmingham National Bank. On the 19th of May, 1892, the Birmingham National Bank filed a written answer in said case denying any indebtedness to the said Galatoire. On June 21 1892, an affidavit was filed in said case by Morris Loveman attorney for plaintiff. In this affidavit the said attorney deposed "that, in his belief, the answer of W. A Porter, cashier of the Birmingham National Bank, garnishee in case of S. C. Mayer against John Galatoire, is untrue. Affiant is informed and believes that said garnishee has in its possession, or under its control, about $123, the money of defendant." On the 21st day of June, 1892, it appears that the clerk of said court issued a notice of said contest which, it further appears from the transcript, the sheriff "executed by serving a copy of the within writ of garnishment on the within-named W. A. Porter, cash. B'ham Nat. Bank. On this 21st day of June, 1892." On the 29th day of October, 1892, a notice to garnishee, of contest, was issued by the clerk of said court. On the 29th day of October, 1892, the sheriff made this return: "Executed by serving a copy of the within writ of garnishment on the within-named W. A. Porter, late cash'r B'ham Nat. Bank." On the 15th of November, 1893, the bill of exceptions shows that the following proceedings were had: "The attorney for the plaintiff stated that the said garnishee, at the time of the service of said garnishment, and at the time of the answer of same, had money belonging to the defendant amounting to $113.50." And the attorney for the garnishee then stated that "said garnishee did not have, at the time of the service of said garnishment, or at the time of making said answer, $113.50 belonging to the defendant." Thereupon, the garnishee moved to dismiss said contest (1) because no issue was tendered, as provided by the statute, at the term of the court at which said contest was instituted. The motion was overruled, to which ruling the said garnishee then and there excepted. Whereupon, the garnishee then moved to dismiss said contest (2) because the affidavit made did not state that the answer of the Birmingham National Bank, garnishee, was untrue, or believed to be untrue. The court overruled the motion, to which ruling the garnishee then and there excepted. Whereupon, the garnishee further moved to quash said contest proceeding because the same was not instituted, as prescribed by law, at the term at which said answer was made. The court overruled the motion, and the garnishee then and there excepted. Then the plaintiff introduced W. A. Porter as a witness, who testified that he was cashier of the Birmingham National Bank; that J. Galatoire had on May 5, 1892, the sum of $113.50 on deposit in the Birmingham National Bank; that said Galatoire at that time, and at the time of the answer, owed the Birmingham National Bank $500, evidenced by a negotiable note maturing May 22, 1892. The plaintiff then introduced said note in evidence, with indorsements thereon. Said Porter further testified that on May 5, 1892, the said sum of $113.50, which was on deposit in said bank in the name of J. Galatoire, was, by instruction of the president of the bank, held back on account of said Galatoire's indebtedness to the bank, as above stated, and that on May 18, 1892, he entered a credit of said amount on the back of Galatoire's note. Plaintiff then introduced in evidence the writ of garnishment, showing service of garnishment on the Birmingham National Bank on the 18th of May, 1892, and the affidavit of contest; also, the judgment entry in the case of S. C. Mayer against John Galatoire. The garnishee then introduced Gen. R. D. Johnston, who testified that he was president of the Birmingham National Bank in May and June, 1892; that said Birmingham National Bank had gone into voluntary liquidation prior to the 1st of May, 1892, as provided under the national banking laws of the United States. Said Johnston further testified that the commercial agency of R. G. Dun & Co. communicated to him, as president of the Birmingham National Bank, on May 5, 1892, that J. Galatoire, of Birmingham, Ala., had sold out, leaving debts unpaid, and that creditors should look after their interests without delay,-bearing date of May 5, 1892. The said Johnston further testified that he knew of claims being in attorneys' hands, against said Galatoire, at that time; that on the 5th of May, 1892, he instructed the cashier of...