Cottingham v. Greely-Barnham Grocery Co.

• Decision Date: 18 February 1901
• Citation: 30 So. 560,129 Ala. 200
• Parties: COTTINGHAM v. GREELY-BARNHAM GROCERY CO. [1]
• Court: Alabama Supreme Court

30 So. 560

129 Ala. 200

COTTINGHAM v. GREELY-BARNHAM GROCERY CO. ^[1]

Supreme Court of Alabama

February 18, 1901

Appeal from circuit court, Bibb county; John Moore, Judge.

Action by the Greely-Barnham Grocery Company against E. N Cottingham and J. L. Suttle. Judgment for plaintiff, and garnishment served on E. N. Cottingham. Verdict and judgment for plaintiff, and garnishee appeals. Reversed.

This writ of garnishment was issued on December 13, 1894, and was executed on the same day by serving a copy thereof on the garnishee. On December 19, 1894, the garnishee answered denying any indebtedness to E. N. Cottingham and J. L Suttle, and further denied that he had in his possession any money or effects which belonged to the said E. N. Cottingham and J. L. Suttle. On December 19, 1894, the plaintiffs filed an affidavit contesting said answer, and declaring that in the belief of the affiant said answer was untrue. At the spring term, 1895, the plaintiffs tendered an issue. The garnishee moved to strike the cause from the docket upon the ground that issue was not made up at the term of the court to which the answer was made. This motion was overruled, and the garnishee duly excepted. The issue and the special plea, upon which issue was joined, and the other facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charge: (2) "The court charges the jury that if they believe from the evidence that the notes and accounts of E N. Cottingham & Co. included in the assignment or bill of sale made by them in December, 1892, to J. M. Cottingham and Mrs. M. A. Suttle, were not levied upon under the attachment writ by the attaching creditors of said E. N. Cottingham & Co., then they must find the issue for the plaintiff." The garnishee separately excepted to the giving of this charge, and also separately excepted to the court's refusal to give, among others, each of the following charges requested by him: (2) "Gentlemen of the jury, the court charge that you cannot consider in this case, in estimating the value of the property which is set out in the bill of sale, any of the notes, accounts, or mortgages or choses in action which came into the possession of the garnishee by reason of said bill of sale, but that you can look to and inquire if any money has been collected upon or from said choses in action; and, if you find there was money so collected, then you go to the further consideration of how much money was collected, and if you come to the conclusion that the fair market value of the property and money collected does not exceed three thousand dollars, then I charge you to find the issue in favor of the defendant garnishee." (3) "The court charge you that you can only consider the fair and reasonable market value of the stock of goods, together with the amount of moneys collected from the notes, mortgages, accounts, and choses in action, which came into the hands of the garnishee under the bill of sale; and if you conclude that both do not exceed three thousand dollars in amount, then you must find the issue in favor of the defendant garnishee." (11) "I charge you that if J. M. Cottingham, the garnishee herein, paid to the sheriff of Bibb county three thousand dollars in the attachment proceedings of Armour Packing Company, Bamberger, Bloom & Co., Hodges Bros. & Co., and Richardson Bros. against E. N. Cottingham & Co., and three thousand dollars was a fair and reasonable market value of the goods and property which came into the hands of the garnishee, J. M. Cottingham, under said bill of sale, then I charge you to find the issue in favor of the garnishee." It is unnecessary to set out at length the other charges requested by the garnishee which were refused by the court. There were verdict and judgment for the plaintiff.

Logan & Vaude Graaff, for appellant.

J. M. McMaster, for appellee.

TYSON J.

The statute does not require the issue to be made at the term of the court at which the answer of the garnishee is contested. It only requires that the plaintiff, his agent or attorney, may controvert the answer by making oath at the term the answer is made that he believes it to be untrue. Code, § 2196, and authorities cited thereunder. The issue to be made up after a contest of the answer, under the direction of the court, in which the plaintiff must allege in what respect the answer is untrue, is in the nature of a complaint in the cause, and not entirely dissimilar in respect to stating the plaintiff's cause of action, as is the complaint of the plaintiff in a suit commenced by attachment. Lindsay v. Morris, 100 Ala. 546, 13 So. 619. Such a tender of issue may be filed at any time before the trial.

We cannot review the rulings of the court in striking certain pleas filed by the garnishee, for the reason that neither the motions, the pleas, nor the rulings of the court appear in the bill of exceptions. Holley v. Coffee (Ala.) 26 So. 239. The cause was tried upon the issue tendered by the plaintiff and the general issue and special plea No. 11. In the tender of issue it is averred that prior to December 23 1892, the defendants, E. N. Cottingham and J. L. Suttle, as partners composing the firm of E. N. Cottingham & Co., carried on a mercantile business in the town of Blocton, Ala.; that prior to said date they were indebted to the plaintiff for goods, wares, and merchandise sold, which indebtedness was reduced to judgment on the 7th day of June, 1894, and is still due and unpaid; that on the said 23d day of December, 1892, the defendants made a fraudulent sale and transfer of the goods, wares, and merchandise owned by them, as well as all the notes and accounts due to them to the garnishee and Mrs. M. A. Suttle, by executing to them jointly a bill of sale thereof upon the recited consideration of $15,090.50, of which the sum of $8,983.02 was recited to be the amount of the indebtedness due by the defendants to the garnishee, and the sum of $6,113.50 was recited to be the amount of indebtedness due by the defendants as a firm to Mrs. M. A. Suttle; that in fact the said defendants as a firm were not indebted to Mrs. Suttle in any sum whatever, and that the said...