Central Bank & Trust Co. v. Alabama Broom & Mattress Co.

• Decision Date: 10 June 1920
• Docket Number: 8 Div. 236
• Parties: CENTRAL BANK & TRUST CO. v. ALABAMA BROOM & MATTRESS CO.
• Court: Alabama Supreme Court

85 So. 738

204 Ala. 410

CENTRAL BANK & TRUST CO. v. ALABAMA BROOM & MATTRESS CO.

8 Div. 236

Supreme Court of Alabama

June 10, 1920

Rehearing Stricken June 30, 1920

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

The Alabama Broom & Mattress Company began by attachment an action against the Nashville Broom & Supply Company and served garnishment upon the Huntsville Bank & Trust Company. The Huntsville Bank & Trust Company answered that it had in its possession certain money, the proceeds of a draft, drawn by the Nashville Broom & Supply Company on the Alabama Broom & Mattress Company, and indorsed by the Central Bank & Trust Company, and that it had been notified that the fund was claimed by the Central Bank & Trust Company. The Central Bank & Trust Company filed claim to the fund, and on the trial there was judgment for the plaintiff in garnishment, and the claimant appeals. Affirmed.

Cooper & Cooper, of Huntsville, for appellant.

David A. Grayson, of Huntsville, for appellee.

SOMERVILLE J.

One who claims a debt, or money, or effects in the hands of a garnishee, as against the plaintiff in garnishment, under the provisions of sections 4328 and 4329 of the Code, must allege and prove that he has a valid claim thereto. Clark v Few, 62 Ala. 243. And when he claims as a transferee of the defendant in garnishment, he must show a transfer before the service of the garnishment. Winslow v. Bracken, 57 Ala. 368; Camp v. Hatter, 11 Ala. 151; Scott v. Stallsworth, 12 Ala. 25.

On the evidence shown by the record, the burden was upon the claimant bank to show that it discounted the draft and acquired a title to its proceeds at an hour of the day on May 4, 1917, which was anterior to the hour at which, on the same day, the writ of garnishment was served on the Huntsville Bank.

We have no judicial knowledge as to banking hours in Nashville which may have extended to 4 o'clock p.m. But, even if we could assume that the discounting transaction occurred before 2 o'clock p.m. there would still be an absence of evidence to show that this was prior to the service of the garnishment at some time after 12 o'clock m. Obviously, the one may have occurred about 2 o'clock p.m., and the other about 12:05 o'clock p.m., and the question of priority is one of pure conjecture, unaided by any tendency of the evidence.

It is not enough for one who has the burden of proving a fact to show merely...