Roman v. Dimmick

• Decision Date: 15 June 1899
• Parties: ROMAN v. DIMMICK.
• Court: Alabama Supreme Court

26 So. 214

123 Ala. 366

ROMAN v. DIMMICK.

Supreme Court of Alabama

June 15, 1899

Appeal from circuit court, Montgomery county; J. C. Richardson Judge.

Action in garnishment by S. Roman against J. W. Dimmick. From a judgment for garnishee, plaintiff appeals. Affirmed.

On May 23, 1896, P. W. White made affidavit that at the November term, 1895, of the Montgomery circuit court, Roman recovered a judgment against the Montgomery Iron Works for $2,200, and that he believed Dimmick was indebted to it, and process of garnishment was necessary to collect the debt. On the same day a writ of garnishment was issued directing Dimmick to answer in accordance with the statute at the next term of court. This writ was served May 23, 1896. The next term was in November, 1896; but nothing was done then. At the May term, 1897, the garnishee answered in writing denying any indebtedness.

At the November term, 1898, the garnishee, having been summoned to answer orally, appeared and objected to an oral examination on the ground that he had made a written answer at a previous term denying indebtedness, which was not contested at the term at which it was filed. This was overruled, and he answered orally substantially as follows: There was a corporation in the city of Montgomery known as the Montgomery Iron Works, owning a certain lot with machinery and improvements on it, which was valued by an expert at $50,000. On July 26, 1886, Dimmick, Baldwin and Chambers bought this and received a conveyance, paying therefor $25,000 in cash and assuming debts amounting to $25,000. Shortly afterwards a corporation known as the Montgomery Iron Works was organized with a capital stock of $50,000, divided into 500 shares of $100 each. Dimmick subscribed for 90 or 92 shares and received certificates of stock for 90 shares, amounting to $9,000. On August 20, 1886, Dimmick, Baldwin and Chambers conveyed to the iron works all the property which had been conveyed July 26, 1886, to them by the Iron Works company "and also all property of every kind which has been purchased since that date, and now situated on the premises." On the same day the commissioners appointed by the probate judge reported that the capital stock had been "fully paid for in cash and in property at fair and reasonable valuation." This report, Dimmick says, speaks the truth, and he swears that the property was accepted by the corporation, all stockholders consenting, in full payment of the subscriptions to stock. The garnishee could not remember the exact terms of the contract of subscription, though he thought it was in writing, and payable in property, but his subscription of $9,000 was included with the others, and fully paid up by the transfer of property. He paid in cash on the transaction, though he could not fix exactly how, probably on the purchase of the iron works company property, at first $5,000 in cash, and at another time between $3,000 and $4,000 in cash, which he was compelled to pay over.

In addition to its capital stock, the company issued $25,000 in bonds for improvements, and Dimmick subscribed for and received $5,000 of such bonds. These bonds were also paid for, Dimmick, Baldwin and Chambers conveying the original property purchased from the iron works company and additional property, it being accepted in full payment at that price, and being pronounced worth that by Judge Clopton, an attorney in Montgomery, under whose advice both the stock and bond transactions were conducted. The original property purchased from the company was not only pronounced by an expert employed to examine it prior to purchase, worth $50,000, but was regarded by garnishee as fully worth that or more.

The plaintiff upon this answer moved for a judgment, and the garnishee asked for his discharge. The court overruled the motion and announced that he would discharge the garnishee; but, before the judgment entry was written up, the plaintiff asked leave to contest the answer, which the court declined to allow him to do. After the discharge of the garnishee he asked leave to have noted on the minutes the pendency of prior garnishments suits against him by other plaintiffs in the city court of Montgomery, which was done. Plaintiff then renewed his motion to be allowed to contest the answer of the garnishee, but the court overruled it.

The present appeal is prosecuted by the plaintiff, who makes the following assignments of error: "(1) The court erred in excluding the answer of the garnishee that he had subscribed for 92 shares of stock in the defendant company. (2) The court erred in not allowing the plaintiff to prove by the examination of the defendant that he had subscribed for 92 shares of the stock of defendant company. (3) The lower court erred in not giving judgment against the garnishee on his answer as asked by plaintiff. (4) The lower court erred in not allowing the plaintiff to contest the answer of the garnishee. (5) The court erred in discharging the garnishee on his answer. (6) The court erred, after garnishee had amended his answer, in refusing the right of plaintiff to contest the answer."

Gunter & Gunter, for appellant.

Watts, Troy & Caffey, for appellee.

HARALSON J.

1. The first and second assignments of error are without avail to appellant. If the court erred in excluding the evidence offered in the first instance, the error was cured by its subsequent admission. McLendon v. Grice (Ala.) 24 So. 846.

2. After the garnishee had answered fully an oral examination, the bill of exceptions recites: "This was in substance all of the garnishee's answer, and thereupon plaintiff asked for a judgment upon the answer of the garnishee, and the garnishee asked for a discharge. After argument, the court said he would have to refuse the motion for a judgment, and discharge the garnishee, to which ruling the plaintiff excepted; and thereupon at once and before any judgment entry, and during the term of the court, the plaintiff asked leave to file a contest of the garnishee's answer, and submitted to the court the affidavit of the plaintiff for that purpose, *** but the court refused to entertain the motion and discharged the garnishee," to which ruling the plaintiff excepted.

The fourth assignment questions the correctness of the ruling of the court in now allowing the plaintiff, at this stage of the proceedings, to contest the answer of the garnishee. This ruling is fully justified. Code, § 2196, provides, that "the plaintiff, his agent or attorney, may controvert the answer of the garnishee, by making oath at the term the answer is filed, 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...