Diamond Rubber Co. v. Fourth Nat. Bank

• Decision Date: 21 April 1911
• Parties: DIAMOND RUBBER CO. v. FOURTH NAT. BANK.
• Court: Alabama Supreme Court

55 So. 100

171 Ala. 420

DIAMOND RUBBER CO. v. FOURTH NAT. BANK.

Supreme Court of Alabama

April 21, 1911

Appeal from City Court of Montgomery; William H. Thomas, Judge.

Action by the Diamond Rubber Company against W. M. Cannon and others, doing business as the Capital City Auto Company, as defendants, and against the Southern Hardware & Supply Company as garnishee, in which the Fourth National Bank appeared as claimant. From a judgment for claimant, plaintiff appeals. Reversed and remanded.

The Southern Hardware & Supply Company answered, admitting an indebtedness of $1,300, which was due as a balance on an automobile purchased by it from the defendant, on which it had paid $100 cash, leaving a balance due of $1,300, and also set up the fact that the Fourth National Bank of Montgomery claimed the funds in its hands. The Fourth National Bank interposed its claims as follows: "Now comes the Fourth National Bank of Montgomery, in response to the suggestion of the Southern Hardware & Supply Company, garnishee, suggesting in the supplement to its answer said Fourth National Bank of Montgomery as claimant to the funds referred to in its answers, and says that the automobile alleged to have been purchased from the Capital City Auto Company, which was in fact W. N. Cannon, doing business under that name, was the property of the said Fourth National Bank of Montgomery; that it owned and claimed said automobile under and by virtue of a note and contract executed by W. N. Cannon, copies of which note and contract, respectively, are hereto attached and made exhibits. Said Fourth National Bank claims and avers that said automobile was shipped to W. N. Cannon, or to Capital City Auto Company, which was the name under which said Cannon was engaged in business in Montgomery; that said automobile was shipped with draft attached to bill of lading, and it could not be obtained by said Cannon without first paying the purchase price for same; and that said Cannon procured said Fourth National Bank of Montgomery to advance the money to pay for said automobile, with the understanding and upon the conditions set forth in the note and agreement, copies of which are attached as exhibits as above set forth; and pursuant to said agreement said Fourth National Bank of Montgomery stored said automobile with said Cannon as bailee. Wherefore said Fourth National Bank of Montgomery claims and avers that said automobile, or the amount for which it was sold to said Southern Hardware & Supply Company, is the property of this plaintiff, and not the property of said Cannon."

Ball &amp Samford, for appellant.

Robert L. Harmon, for appellee.

ANDERSON J.

The Southern Supply Company was garnished, and admitted an indebtedness for the purchase money of a certain automobile from the defendant Cannon, and suggested that said fund was claimed by the appellee, the Fourth National Bank. The fund and not the automobile, was involved in the controversy and the issue to be tried, under section 4329 of the Code of 1907, was, not who was entitled to the machine, but who was entitled to the fund? While the statute requires no particular form or nicety of pleading, yet section 4329 requires the claimant to propound his claim in writing and make oath thereto, upon which the plaintiff must take issue. The claim should be to the fund or thing set up in the answer of the garnishee, and not to something not involved; and as the answer set up an indebtedness, the claim should have been to the fund, and not to it or an automobile. The trial court erred in sustaining the sufficiency of the claim propounded by the claimant. If it claimed the debt, it should have so stated; and it made no difference whether it owned the automobile, or not as the right to same was not involved except as an incident to the ownership of the fund. If at the time the claim was propounded the bank claimed the automobile, this would be a disaffirmance of the sale of same by Cannon, and it would have no right to the proceeds of the sale. On the other hand, if it claimed the proceeds, it could only do so upon the...