Curtis v. Parker & Co.

• Decision Date: 28 February 1903
• Citation: 33 So. 935,136 Ala. 217
• Parties: CURTIS v. PARKER & CO.
• Court: Alabama Supreme Court

33 So. 935

136 Ala. 217

CURTIS v. PARKER & CO.

Supreme Court of Alabama

February 28, 1903

Appeal from Circuit Court, Cullman County; Osceola Kyle, Judge.

Action by J. J. Curtis against the Alabama Vineyard & Winery Co. and Parker & Co., bankers, garnishees. Garnishees denied indebtedness to defendant, which was contested by plaintiff who appeals from a decision in favor of garnishees. Affirmed.

The opinion shows most of the material facts in evidence. Other matters referred to in the opinion were as follows:

Assignments of error 8 and 9 refer to questions asked one Wallace, in regard to statements made to him by Sexton, the secretary and Clarke, the vice president, of defendant company, as to whose money it was that garnishees had.

The answers of the witness Sexton to the seventh interrogatory and to the second and third cross-interrogatories are as follows: To the seventh: "I am not clear as to dates just now, but I think and feel pretty sure that I did receive part of this money after the 4th of September, 1899, from Parker & Co., but am not sure of the amount. There was a certain amount, however, received about this time, and the said money was used in buying up the labor claims of the Alabama Vineyard & Winery Company, each and every one of which were transferred to the Alabama Vineyard Company and is held to-day by R. L. Spencer as a debt against the Alabama Vineyard & Winery Company. There was a certain amount of this money received before and a certain amount received after the service of the garnishment, but I cannot now remember exactly the amounts." To the second cross-interrogatory: "I do not know what position R. L. Spencer held actually in the Alabama Vineyard Company." To the third cross-interrogatory: "No part of said $500 was the property of the said Alabama Vineyard & Winery Company, but it was the individual money and property of R. L. Spencer. No part of the money was the property of either the Alabama Vineyard & Winery Company or the Alabama Vineyard Company."

Charge No. 1 refused to plaintiff was as follows: "The court charges the jury that the garnishee cannot set up title in R L. Spencer, when he has not come in as a claimant."

Brown &amp Curtis and R. L. Hipp, for appellant.

J. B. Brown, for appellees.

HARALSON J.

1. If there was any error in the refusal of the court to allow the plaintiff to amend the grounds of the contest of the answer of the garnishees, it was error without injury. The garnishees had answered in writing, denying indebtedness, and the plaintiff had filed two written contests of the answer, the one, on the 5th of December, 1899, in which he stated he believed the answer to be untrue. He did not specify in what respect the answer was untrue. On the 20th day of March, 1900, he filed another contest on which issue was joined in which he specified grounds in which the answer was untrue. The first contest was, under the statute (Code, § 2196), defective, but it was competent for plaintiff to amend the grounds of contest, so as to cure this defect. Lindsay v. Morris, 100 Ala. 547, 13 So. 619.

On the 21st of March, 1901, the plaintiff offered again to amend his grounds of contest, in which he amplified the grounds therefor, but the garnishees objected to the same, on the ground that it set up the same grounds theretofore filed, on which issue had been joined. If these additional grounds of contest ought to have been allowed to be filed, its refusal by the court would, at most, be error without injury, since the grounds set up in the proposed amendment were fairly covered by the other contests, and were fully gone into on the trial. Milligan v. Pollard, 112 Ala. 465, 20 So. 620; The Bienville W. Co. v. Mobile, 125 Ala. 178, 27 So. 781; Trager v. Feibleman, 95 Ala. 61, 10 So. 213.

2. While the cause was being tried, the plaintiff moved that the garnishees be required to produce their ledger, journal and cashbook, which motion, on objection of garnishees, the court refused to grant, but stated that if the books were not produced, secondary evidence of their contents would be allowed. The books, however, as is shown, were afterwards produced, and were offered in evidence. In this, if there was any error in denying the motion, it was without injury. The plaintiff had the full benefit of the evidence he desired.

3. There was no error in refusing to allow the plaintiff to introduce the summons and complaint, his affidavit and bond for the garnishment process. These papers were in no sense relevant to the issue, and their introduction would have been error against garnishees. Taliaferro v. Lane, 23 Ala. 369.

4. Nor was there error in refusing to allow the plaintiff to testify that one Sexton, who was the secretary of the defendant company, showed him, the witness, his passbook from Parker & Co., the garnishees, showing a credit of $500 to him. This was the merest hearsay.

The rulings constituting assignments of error 8 and 9, fall within the same category. What Sexton and Clarke said as to whose money it was that garnishees had, was, as against garnishees, hearsay.

5. M. P. Wollam testified for plaintiff that on the day of the garnishment, he had a check given him by Sexton for a small sum, for work done for defendant and he went to garnishees to get it cashed, and they refused to pay it, on the grounds that the funds had been garnished, and told him he would have to wait until the matter was fixed; that he left the check with the garnishees and went back afterwards, and got a part of his money. This evidence, on motion of garnishees, was excluded, and properly so, as being irrelevant and illegal. It did not tend to show that garnishees had money belonging to defendant. They might have paid it out of their own funds, or they might have been indemnified to pay. If liable at all it was because they had funds in hand, at the date of the garnishment, or at the time of making answer, etc., which belonged to defendant, and subsequent payment of money to others was immaterial. Such payments, if made, were at their risk, and avail nothing, as against the plaintiff, if the funds belonged to defendant. But such payments, without more, were not an admission that they did belong to him. Archer v. P. S. Bank, 88 Ala. 249, 7 So. 53.

6. If there was error in refusing to allow plaintiff to prove the contents of Sexton's passbook with garnishees, by secondary evidence of its contents, which it is unnecessary to decide, it was cured by the subsequent production of the same and its introduction in evidence.

7. The garnishees offered in evidence, against the objection of plaintiff, the proceedings in the probate court to incorporate the Alabama Vineyard Company. These proceedings showed, that plaintiff was one of the corporators of said company, and had had dealings with it as an incorporation, which estopped him to deny its existence. Besides, he had introduced a part of these proceedings, showing that all the steps necessary to a complete incorporation had been taken, except the issuance of the final certificate. The object of this evidence, offered by garnishees, was not only to show that the company was duly chartered, but that plaintiff was a subscriber to its capital stock. It was shown further, that the final certificate had been issued on the 8th March, 1900, evidencing the complete organization of the company. There was no error here. If a part of it was competent for plaintiff, the whole of it was admissible for garnishees. Smith v. Collins, 94 Ala. 406, 10 So. 334.

8. The plaintiff had taken the deposition of A. C. Sexton, and, on the trial, offered a portion of the same. There was no error in allowing garnishees to offer other portions of it, and even if no portion of it had been offered by him, when the deposition had been taken and filed, it was for the use of either party, and garnishees might have offered a part or all of it. Edgar v. McArn, 22 Ala. 812; Fountain's Adm'r v. Ware, 56 Ala. 558; Stewart v. Hood, 10 Ala. 600; 6 Ency. Pl. & Pr. 583.

9. Said witness, Sexton, in his deposition further stated, that he had received a letter from R. L. Spencer, who had sent him the $500, telling him to buy in the labor claims against the Alabama Vineyard & Winery Company and have them transferred to the Alabama Vineyard Company. This answer, as the bill of exceptions states, was made in response to a question propounded to the witness by plaintiff on interrogatories filed, and...