Lehman v. Hudmon

• Decision Date: 26 July 1888
• Citation: Lehman v. Hudmon, 85 Ala. 135, 4 So. 741 (Ala. 1888)
• Parties: LEHMAN ET AL. v. HUDMON ET AL.
• Court: Alabama Supreme Court

4 So. 741

85 Ala. 135

LEHMAN ET AL. v. HUDMON ET AL.

Supreme Court of Alabama

July 26, 1888

Appeal from circuit court, Coosa county; JAMES W. LAPSLEY, Judge.

Hudmon Bros. & Co. recovered a judgment before a justice of the peace against one Lewis S. Driver. A garnishment on said judgment was issued and duly served upon Lehman, Durr & Co. who filed an answer in writing, denying any indebtedness to the said Driver, or any liability whatever. On the same day the plaintiffs filed an affidavit contesting the truth of the answer. Upon the trial of this contest by the justice a judgment was rendered in favor of the contestants, and from this judgment the defendants appealed to the circuit court. This is the second appeal taken to the supreme court in this case. For former appeal, see 79 Ala. 532. After the cause was remanded by the supreme court, the garnishees failed to appear, and a judgment by default was rendered against them and from this judgment Lehman, Durr & Co. prosecute this appeal. Code Ala. 1886, § 2981, provides that "the plaintiff, his agent or attorney, may controvert the answer of the garnishee, by making oath, at the term the answer is made, that he believes it to be untrue; and thereupon an issue must be made up, under the direction of the court, in which the plaintiff must allege in what respect the answer is untrue; and, if required by either party, a jury must be impaneled to try such issue."

Rice & Wiley, for appellants.

Felix L. Smith, for appellees.

SOMERVILLE J.

There is, in our opinion, no error in the judgment rendered against the garnishees. The case stood for trial de novo before the circuit court on appeal from the justice's court. The plaintiff had controverted the answer of the garnishees, which denied the fact of indebtedness to the defendant, and an issue was thereupon made up under the direction of the court, as required by the statute, which was properly tried by a jury. Code 1886, §§ 2981, 2982. The garnishees having failed to appear and support the truth of their answer, the plaintiff was entitled to claim a judgment by default against them, such as the record shows was taken. A garnishee who is negligent can claim no more favor at the hands of the courts, nor is he entitled to greater protection, than any other negligent party. He is required to use the same diligence in protecting himself against an improper judgment that is exacted of other defendants. If he fails to do so, he is without relief. Drake, Attachm. (6th Ed.) § 658 e. But the court, notwithstanding properly proceeded to try the issue of indebtedness...