Lindsay v. Morris

• Citation: 13 So. 619,100 Ala. 546
• Parties: LINDSAY v. MORRIS ET AL.
• Decision Date: 22 June 1893
• Court: Supreme Court of Alabama

13 So. 619

100 Ala. 546

LINDSAY v. MORRIS ET AL.

Supreme Court of Alabama

June 22, 1893

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

The appeal in this case is prosecuted by David Lindsay, the plaintiff in the lower court, from a judgment rendered granting a motion of the garnishee to strike from the file the tenders of issue made by the plaintiff. Reversed and remanded.

Richardson & Reese, for appellant.

HEAD J.

At the suit of appellant, Lindsay, the appellees, Josiah Morris &amp Co., were summoned to answer, as garnishees, what they were indebted to Samuel Hyams, the defendant in attachment. On February 25, 1892, they filed in open court a general answer of "not indebted." During the same term, on March 3, 1892, the court made an order requiring the garnishees to appear on the next day and answer orally. They accordingly appeared, and were examined orally, and their answer reduced to writing and filed. This oral answer disclosed no admission of indebtedness to, or possession of effects of, the defendant Hyams, upon which the court could have rendered any judgment against the garnishees. It treats very indefinitely of a bill of sale, which, it seems, was executed by Hyams to or for the use of the garnishees and others on the 9th day of December, 1891, but the particulars of the instrument and the property described in it are not shown. It was executed prior to the suing out of plaintiff's attachment; and it not being disclosed by the answer that plaintiff was an existing creditor of Hyams when the bill of sale was executed, and no facts being stated from which it can be inferred that the sale was actually fraudulent, and no description of the property being given, there was nothing to support the plaintiff's motion for judgment upon the answer. On the 11th day of March, 1892, which was during the term of the court at which the answers were filed, the plaintiff, in strict pursuance of the statute, contested their truths by filing in the cause the prescribed affidavit; and in that condition the cause was continued until the next term. At that term, when the cause came on for trial, the plaintiff obtained leave of the court to file, and did then file, in writing, tenders of issues to be made up, under the statute for trial, upon the contest which had been inaugurated by the filing of the affidavit aforesaid. Thereupon the garnishees moved the court to strike the tenders of issues from the file on two grounds: (1) Because they were not filed at the same term at which the affidavit of contest was filed; (2) because they did not allege wherein the answer was untrue. The court sustained the motion, and the plaintiff excepted. We think the first ground of this motion to strike was not well taken. The statute directs that the affidavit of contest must be filed at the term at which the answer is made, 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. Code,§ 2981. It is manifest the statute does not in terms direct this issue to be made up at the same term the affidavit is filed; but, if such is the implication, it is not mandatory, and it was competent for the court to allow it to be made up at a subsequent term; and this the court did when it granted leave to the plaintiff to file the tenders of issue. Ex parte Opdyke, 62 Ala. 70; Beckert v. Whitlock, 83 Ala. 123, 3 South. Rep. 545. When that was done the court's discretion (if it be a matter of discretion merely, which we do not now decide) was exercised, and the issues tendered and filed became properly a part of the record of the cause, and it was not allowable to strike them out on the ground that they were not filed in time. Moreover, when the cause was continued at the previous term there was nothing involved in it but the...