Hodges v. Wiles, 8 Div. 803.

• Decision Date: 03 October 1939
• Docket Number: 8 Div. 803.
• Citation: 191 So. 401,29 Ala.App. 32
• Parties: HODGES v. WILES.
• Court: Alabama Court of Appeals

191 So. 401

29 Ala.App. 32

HODGES v. WILES.

8 Div. 803.

Court of Appeals of Alabama

October 3, 1939

Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.

Action on a note by W. S. Wiles against D. J. Atchley and Mollie Cuzzort, with garnishment in aid of suit to W. A. Hodges, Jr. From a judgment for plaintiff, the garnishee appeals. Revived on death of W. S. Wiles in the name of Lula B. Wiles, as administratrix of the estate of W. S. Wiles, deceased, as appellee.

Reversed and remanded.

Street & Orr, of Albertville, for appellant.

P. W Shumate, of Guntersville, for appellee.

SAMFORD Judge.

The suit was begun on a promissory note against D. J. Atchley and Mollie Cuzzort by W. S. Wiles, who, in aid of suit, sued out a writ of garnishment against the appellant requiring him to answer as to indebtedness to Mollie Cuzzort.

Judgment was rendered by default against the defendants, and the garnishee, W. A. Hodges, Jr., filed his answer on the 8th day of October, 1937, admitting an indebtedness. But on January 7th, 1938, the garnishee, by leave of the court, filed an amended answer in lieu of the original answer, sworn to as required by law, showing that he was indebted to the defendant, Mollie Cuzzort, by virtue of four promissory notes, dated January 13th, 1937, for $200 each, respectively and payable as follows: January 13th, 1938; January 13th 1939; January 13th, 1940; and January 13, 1941. Copies of said notes were attached and made a part of the answer, which copies disclosed that each of said notes was negotiable and subject to the law merchant. Neither of these notes were due on the date of the filing of said answer, but one of them was due at the date of the judgment on the answer, which was rendered the 1st day of April, 1938.

Judgment was rendered on the answer of the garnishee without contest. From this judgment this appeal is taken.

The answer of the garnishee discloses that the indebtedness of the garnishee was evidenced by negotiable promissory notes not then due, and not shown to have been in the hands of the payee.

The weight of authority is to the effect that the maker of a negotiable note cannot be charged as garnishee of the payee while such note is still current as negotiable paper, subject to be transferred to a bona fide purchaser without notice before maturity. Gatchell & Co. v. Foster, 94 Ala 622, 10 So. 434; Wohl v. First Nat. Bank of Gadsden, 154 Ala....