First Nat. Bank v. Minge

• Decision Date: 16 April 1914
• Docket Number: 547
• Citation: 186 Ala. 405,64 So. 957
• Parties: FIRST NAT. BANK OF BIRMINGHAM v. MINGE.
• Court: Alabama Supreme Court

64 So. 957

186 Ala. 405

FIRST NAT. BANK OF BIRMINGHAM v. MINGE.

No. 547

Supreme Court of Alabama

April 16, 1914

Appeal from Law and Equity Court, Marengo County; Edward J. Gilder Judge.

Action by John H. Minge against the Faunsdale Oil Mill, in which the First National Bank of Birmingham was garnished. From a judgment for plaintiff, the garnishee appeals. Affirmed.

George Pegram, of Faunsdale, Davis & Fite and Bankhead & Bankhead all of Jasper, for appellant.

London & Fitts, of Birmingham, for appellee.

McCLELLAN J.

On the 30th day of May, 1912, John H. Minge instituted his action in the Marengo law and equity court against the Faunsdale Oil Mill, a corporation, and on the same date made affidavit and executed bond for writs of garnishment against W.C. Clark and the First National Bank of Birmingham. On May 31, 1912 notice of the issuance of these writs of garnishment was issued by the clerk of the Marengo court, and this notice was served on the Faunsdale Oil Mill's president, W.C. Clark on June 3, 1912. On June 3, 1912, the writ of garnishment so issued was served on the First National Bank of Birmingham. On June 19, 1912, the First National Bank of Birmingham filed its answer as garnishee, in which the bank said that the Faunsdale Oil Mill was indebted to the bank in the sum of $10,000, evidenced by note of the debtor, and that the Faunsdale Oil Mill had on deposit with the bank the sum of $1,533, and that it (the bank) is entitled to set off against the indebtedness of the oil mill the said sum so on deposit, and thereupon claimed the benefit of such set-off, thereby extinguishing all indebtedness by the bank to the oil mill. By amendment of the bank's answer, filed March 4, 1913, this was added to the original answer: "The said ten thousand dollars is due by three certain notes made to the First National Bank by the Faunsdale Oil Mill, one in the sum of one thousand dollars, which was due June 27, 1912; the second in the sum of five thousand dollars, due July 11, 1912; and the third in the sum of three thousand dollars, due July 19, 1912."

It thus appears that at the date of the service of the writ of garnishment (June 3, 1912) no part of the indebtedness of $10,000, by the oil mill to the bank, had matured; the earliest date of partial maturity being June 27, 1912. The set-off asserted by the bank was denied, upon the theory, as appears, that the liability of the bank to the oil mill for the sum on deposit could not be extinguished by setting it off...