First Nat. Bank v. Dimmick

• Decision Date: 01 February 1911
• Citation: 177 Ala. 571,58 So. 658
• Parties: FIRST NAT. BANK v. DIMMICK.
• Court: Alabama Supreme Court

58 So. 658

177 Ala. 571

FIRST NAT. BANK v. DIMMICK.

Supreme Court of Alabama

February 1, 1911

On Rehearing of Appellant, June 30, 1911.

On Rehearing of Appellee, May 1, 1912.

On Rehearing of Appellee.

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

Action by the First National Bank against the Montgomery Iron Works in which J. W. Dimmick was garnishee. From a judgment for the garnishee, plaintiff appeals. Reversed and remanded.

Dowdell C.J., and Simpson and Sayre, JJ., dissenting.

Alex Troy and Gunter & Gunter, all of Montgomery, for appellant.

Tyson Wilson & Martin and Thetford & McKenzie, all of Montgomery, for appellee.

DOWDELL, C.J.

Prior to the Code of 1852 there was no provision in the statutes authorizing a written answer by a garnishee in garnishment proceedings, the statute requiring him to answer orally in court. But notwithstanding the statutes at that time made no provision for written answers by garnishees, a practice coeval with the statute sprung up, of making written answers when done with the consent of the court. It was within the discretion of the court to receive it or not. Under the rule then existing the answer, whether oral or written, formed no part of the record unless made so by some act of the court in the recitals in the judgment entry, or by bill of exceptions. Such was the rule as recognized in the case of Stubblefield v. Haggerty, 1 Ala. 38, in which case the court, after declaring in effect that the statutes made no provision for the filing of a written answer, said: "We are aware that the practice has grown up under this statute, of receiving the answer of a garnishee in writing without subjecting him to an examination in court, unless the party examining him is persuaded that the answer is not a full disclosure of the facts. This practice, coeval with the statute furnishes a warrant for taking the answer as a part of the record when the judgment affirms the fact that it was received and filed."

Many cases are to be found where this court, prior to the Code of 1852, considered a written answer of the garnishee a part of the record when identified and referred to in the judgment entry. A number of these cases are cited in briefs of counsel on both sides in the present case. A sufficient reason for the rule requiring the written answer to be identified as having been received and filed before it could be considered as a part of the record of the lower court, was that the statute made no provision for a written answer, and only provided for an oral answer in court. Without the consent of the court no duty rested on the clerk to receive and file it, and hence it required some act of the court to make it a part of the record. So, according to the decisions, stood the law in reference to answer of the garnishee's becoming a part of the record, prior to the Code of 1852.

The question then is, Did the Code of 1852 authorize the filing of a written answer by the garnishee, and, if so, did such authorization operate to obviate the old rule, and constitute the written answer, when filed, without more, a part of the record in the garnishment proceedings. Section 2540 of the Code of 1852, provided as follows: "The garnishee must answer upon oath according to the terms of the citation, within the three first days of the return term of the attachment, and may, if required by the plaintiff, be examined orally in the presence of the court." This statute has been re-enacted and brought forward in the several Codes since the Code of 1852 down to the present without any substantial change. That this statute authorizes a written answer is too plain to admit of question; such has been the invariable practice, and we do not understand that it is now disputed. When so made, it becomes a part of the file in the proceedings in which it is made. It requires no consent of the court for the garnishee to answer in writing, and the court could not without committing reversible error refuse to allow it.

In the case of Mobile v. Rowland, 26 Ala. 503, this court construed the statute as not only authorizing a written answer, but also the filing of the same. It is said in that case: "The garnishee must be summoned to appear and answer on oath. Code [1852], § 2517. He must file (italics ours) his answer, on oath, within three days of the term to which the summons is made returnable. Section 2540 (Code of 1852). He may be orally examined in the presence of the court."

In Lewis v. Dubose, 29 Ala. 219, this court expressly recognized the right of the garnishee to file his answer in writing, citing Easton v. Lowery (at the same term) 29 Ala. 455.

In Lehman, Durr & Co. v. Hudmon Bros., 79 Ala. 532, His answer was on file,

denying all indebtedness and all liability, and no judgment could be rendered against him on that. True it was controverted, but that neither made nor tendered an issue." (The italics above are ours, for obvious reason.)

In the case just cited the court not only recognized the right of the garnishee to file his answer in writing, but, also, considered it as a part of the record of the lower court, without any reference to it in the judgment entry. It is true that in a number of our cases since the Code of 1852, expressions may be found to the effect that the answer of the garnishee is referred to in the judgment entry and of consequence constituting it a part of the record; and on this it is here insisted in argument that the old rule is still recognized by this court, that the answer of the garnishee can only become a part of the record by some act of the court in which the proceeding is pending. The answer is that the old rule was not recognized in Lehman, Durr & Co. v. Hudmon Bros., supra, where the written answer of the garnishee on file, without any reference to it in the judgment of the lower court, was considered by this court as a part of the record. So, in the recent case of Sun Insurance Co. v. Aberdeen Clothing Co., 157 Ala. 526, 47 So. 722, the written answer of the garnishee on file was considered as a part of the record, although there was no reference to it in the judgment entry of the lower court. The same is true of the cases of Pollock v. Jones, 96 Ala. 492, 11 So. 529, Roman v. Baldwin, 119 Ala. 257, 24 So. 360, Roman v. Dimmick, 123 Ala. 366, 26 So. 214, and Freidman Bros. v. Cullman B. & L. Association, 124 Ala. 344, 27 So. 332. So whether there has been any express declaration in any of our decisions since the Code of 1852 that the written answer of the garnishee when on file becomes a part of the record in the proceeding without any act of the court, it has unquestionably been so recognized. The case of Decatur Co. v. Crass, 97 Ala. 522, 12 So. 43, seems to be the only one of our cases since the Code of 1852, which expressly declares that the answer of the garnishee, to become a part of the record, must be made so by some recital in the judgment entry or by bill of exceptions, citing our earlier cases. Counsel for appellee insist that what is said in the last-mentioned case is dictum. But, whether it is dictum or not, it is in reason and principle opposed to other of our decisions, cited above; and in so far as it is in conflict with the views expressed and conclusion reached in this case, it must be overruled.

We are of the opinion, and so hold, that the answer of the garnishee when in writing and on file becomes a part of the record in the garnishment proceeding without any act of the court.

The contest not having been filed during the term of the court at which the written answer was made and filed as the statute directs, the trial court committed no error in striking it on the motion of the garnishee and in discharging the garnishee on his answer of no indebtedness. This being so, the appellant can take nothing by the exceptions reserved to the rulings of the court on the admission of parol evidence in respect to the filing of the garnishee's answer, since with this evidence in or out, the result would be the same. Error, therefore, in this respect, if any, would be harmless.

It is urged in argument that the contest should have been allowed to the answer of the garnishee of September, 1909, as the contest was filed at the same time this answer was made. The record shows that the garnishee had been required by the plaintiff to answer orally in open court, and by the written agreement of counsel set out in the record it is also shown that the answer of September, 1909, was to be taken and considered as the oral answer required of him. So we interpret the written agreement of counsel. The written contest authorized under the statute to be filed to the answer of the garnishee, is to the written answer filed by the garnishee. This was not done in this case within the time authorized by the statute, but long after the written answer filed by the garnishee and after the adjournment of the term of the court at which the answer was filed. Furthermore, the statute does not authorize the filing of a written contest of the oral examination of a garnishee.

Affirmed.

SIMPSON, SAYRE, and SOMERVILLE, JJ., concur.

MAYFIELD J. (dissenting).

I cannot concur in the opinion or conclusion in this case. I think this decision makes a radical departure from the practice and procedure in garnishment cases which has prevailed in this state for nearly 100 years. The abstract questions decided are: First, that the answer of the garnishee, if in writing and marked "Filed" by the clerk, ipso facto, becomes a part of the record, without any action on the part of the court; and, second, that an oral answer of a garnishee cannot be contested. I think both propositions equally wrong, and each is as wrong as wrong can be, because the converse of both is true.

The...