Balkum v. Strauss

Supreme Court of Alabama

Balkum v. Strauss

100 Ala. 207

CourtSupreme Court of Alabama

DecidedNovember 15, 1893

StatusPublished

Cited by2 cases

This text of 100 Ala. 207 (Balkum v. Strauss) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Balkum v. Strauss, 100 Ala. 207 (Ala. 1893).

Pincite

Opinion

STONE, C. J.

This case presents for our interpretation the act “To dissolve garnishments in cases where the defendant executes bond to plaintiff,” approved February 12,1891. Sess. Acts 1890-91, p. 590. After the attachment was served on the garnishees, the defendant Balkum, together with others as his sureties, executed a bond made payable to plaintiffs, and in proper penalty and condition, which was approved by the clerk of the court and filed in his office; and which bond conforms to the statute. On approving and filing this bond, the clerk made an order dissolving the garnishments.

Balkum v. Reeves, 98 Ala. 460, was decided at the last term of this court. The facts in that case were identical with those in the present record, and the question was whether the Circuit Court erred in awarding judgment [209]*209against Balkum and Ms sureties, after first rendering judgment against Balkum in the principal suit. We affirmed the judgment, declaring there was no error in the record of which appellants could complain. That decision is decisive of the present appeal, and leads to the affirmance of the judgment.

The statute is somewhat awkwardly framed. It is, however, remedial in its character and purpose, and must be liberally construed. Statutes must be so construed, if possible, as to give effect to every clause, and not to place one portion in antagonism to another. Lehman v. Robinson, 59 Ala. 219; Ex parte Dunlap, 71 Ala. 73. If we adopt the construction contended for by appellants, we are led to most absurd results. The purpose and effect of the bond in such cases is to release the garnishee’s debt from the lien created by the service of the writ upon him, and to dissolve the attachment pro tanto. After this, no judgment can be rendered against the garnishee, for the attachment is dissolved as to him. The effect of holding that there must be a judgment in fact against the garnishee before the plaintiff is entitled to “have judgment on such bond against the defendant and sureties,” would be to declare that under no circumstances could a judgment be rendered against the bondsmen. This would be to give an effect to one portion of the statute which is irreconcilably antagonistic to another, and thus to deprive the plaintiff of all remedy on the bond. We can not and will not suppose the legislature intended to furnish the means of depriving plaintiffs of all remedial benefit the law had secured to them under the garnishment law.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

STONE, C. J.

This case presents for our interpretation the act “To dissolve garnishments in cases where the defendant executes bond to plaintiff,” approved February 12,1891. Sess. Acts 1890-91, p. 590. After the attachment was served on the garnishees, the defendant Balkum, together with others as his sureties, executed a bond made payable to plaintiffs, and in proper penalty and condition, which was approved by the clerk of the court and filed in his office; and which bond conforms to the statute. On approving and filing this bond, the clerk made an order dissolving the garnishments.

Balkum v. Reeves, 98 Ala. 460, was decided at the last term of this court. The facts in that case were identical with those in the present record, and the question was whether the Circuit Court erred in awarding judgment [209]*209against Balkum and Ms sureties, after first rendering judgment against Balkum in the principal suit. We affirmed the judgment, declaring there was no error in the record of which appellants could complain. That decision is decisive of the present appeal, and leads to the affirmance of the judgment.

The statute is somewhat awkwardly framed. It is, however, remedial in its character and purpose, and must be liberally construed. Statutes must be so construed, if possible, as to give effect to every clause, and not to place one portion in antagonism to another. Lehman v. Robinson, 59 Ala. 219; Ex parte Dunlap, 71 Ala. 73. If we adopt the construction contended for by appellants, we are led to most absurd results. The purpose and effect of the bond in such cases is to release the garnishee’s debt from the lien created by the service of the writ upon him, and to dissolve the attachment pro tanto. After this, no judgment can be rendered against the garnishee, for the attachment is dissolved as to him. The effect of holding that there must be a judgment in fact against the garnishee before the plaintiff is entitled to “have judgment on such bond against the defendant and sureties,” would be to declare that under no circumstances could a judgment be rendered against the bondsmen. This would be to give an effect to one portion of the statute which is irreconcilably antagonistic to another, and thus to deprive the plaintiff of all remedy on the bond. We can not and will not suppose the legislature intended to furnish the means of depriving plaintiffs of all remedial benefit the law had secured to them under the garnishment law.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

100 Ala. 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/balkum-v-strauss-ala-1893.

Opinion

Related

Cite This Page — Counsel Stack