Brake v. Curd-Sinton Mfg. Co.

• Decision Date: 08 February 1894
• Citation: 14 So. 773,102 Ala. 339
• Court: Alabama Supreme Court
• Parties: BRAKE v. CURD-SINTON MANUF'G CO

14 So. 773

102 Ala. 339

BRAKE v. CURD-SINTON MANUF'G CO

Supreme Court of Alabama

February 8, 1894

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

Action by the Curd-Sinton Manufacturing Company against R. D. Jones on a money demand. There was a judgment for plaintiff, and J L. Brake was summoned as garnishee. From a judgment against him as garnishee, Brake appeals. Reversed.

Noble Smithson and Cabaniss & Weakley, for appellant.

Lane &amp White, for appellee.

HARALSON J.

The appellee brought suit in the circuit court of Jefferson county, against R. D. Jones, on a money demand, and in aid of that suit, garnished J. L. Brake, the appellant. There is no bill of exceptions in the case. It is brought here for review, for errors apparent on the record. The record discloses an answer filed by the garnishee, on the 9th day of January, 1890. It denies any indebtedness by garnishee to defendant, Jones. It also appears from the record, that plaintiff, appellee here, by its attorneys, on the 6th of February, 1890, filed a paper in the cause, styled "Traverse of answer of J. L. Brake, Garnishee," which sets up that the answer of the garnishee is untrue, and points out the respect in which it is untrue, and concludes by asking that an issue be made up "to try whether said garnishee was indebted to said defendant at the time of the service of said garnishment, or at the time of making of said answer, or at any time intervening the service of said garnishment, [and] making said answer." This traverse of the answer was not verified by the affidavit of any officer or agent of the plaintiff corporation, but is simply signed by Lane & White, without more. The Code, section 2981 provides that "the plaintiff, his agent, or attorney, may controvert the answer of the garnishee, by making oath, at the term the answer is made, that he believes it to be untrue; and thereupon, an issue must be made up, under the direction of the court, in which the plaintiff must allege in what respect the answer is untrue." No issue, so far as appears, was made up between the plaintiff and the garnishee, at the term of the court at which the answer was made, or at any other time. On the 24th of October, 1892, nearly two years after the filing of the answer, denying indebtedness, and without anything more than has been above recited, on motion of the plaintiff, the court rendered a judgment by default against the garnishee, as in a suit on an open account, where the defendant failed to appear and plead, and proceeded without the intervention of a jury, to...