Birmingham Loan & Auction Co. v. First National Bank

100 Ala. 249

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

HARALSON, J.

1. An amicus curice, in practice, is one who, as a stander by, when a judge is doubtful or mistaken in a matter of law, may inform the court. Bouv. Dic. “He is heard only by leave and for the assistance of the court, upon a case already before it. He has no control over the suit and no right to institute proceedings thereon, or to bring the case from one court to another by appeal or writ of error.—Martin v. Tapley, 119 Mass. 115; Lawson’s Rights & Remedies, p. and sec. 150.

2. The attorney for the garnishee, as amicus curias, moved to dismiss the suit, on the ground that it was a fictitious one, and the garnishee was a fictitious person. The court overruled the motion, and as amicus cvrice, the attorney excepted. The garnishee, against whom judgment was rendered, assigns this ruling as error.

The amicus eterice, in making this motion, was acting in the interest of his client, to aid him, more than to rescue the court from doubt and mistake; but, conceding his friendliness to the court to have been disinterested, after his motion was overruled, his friendly offices were at an end.* He had no interest which authorized him to except to the ruling of the court, on his motion, nor can the garnishee, in this court, assign that ruling as error. Not having-made the motion, and not having complained of the court’s action on the motion, the ruling is not available on error to the garnishee.-—Eslava v. Farley, 72 Ala. 214.

3. The name of the Birmingham Loan & Auction Company fairly imports a partnership.—Clarke v. Jones, 87 Ala. 474; Seymour v. Thomas-Harrow Co., 81 Ala. 250.

The proof showed that S. Kaufman, during the time covered by the garnishment writ, did business under that name. The name of a firm or partnership ordinarily implies more than one person, but still the name under which one person does business is arbitrary, and if he uses a name that implies a partnership, the reputed firm may be sued under such name, and execution on the judgment obtained, will run against the partnership in name, leviable only on its property, being in the nature of a proceeding in rem and not in personam.—Le Grand v. Eufaula National Bank, 81 Ala. 123; Moore v. Watts & Sons, 81 Ala. 161; Youngblood v. Pugh, 69 Ala. 269; Code, § 2605.

4. The garnishee filed an answer, by S. Kaufman, manager, denying any indebtedness, which answer was contested by plaintiff, setting out several grounds wherein it was alleged to be untrue. On these, the garnishee took issue. It executed an appeal bond from the justice’s to the city court, and appeared by attorney. Having gone to trial on the merits, without having taken objection to any supposed defect in the lower court, the garnishee waived it, and cannot raise tbe point, first, here.—Hazard v. Franklin, garnishee, 2 Ala. 349; Marston v. Carr, 16 Ala. 325; Ortez v. Jewett, 23 Ala. 662; Ware v. St. Louis B. Co., 47 Ala. 667; LeGrand v. Eufaula N. B. supra. Moore v. Watts & Sons, supra.

5. The. attempt to evade liability as a garnishee, in this instance, was extremely technical, to'o much so for justice to close her eyes against. Kaufman who did business under this assumed name, made oath, as manager of garnishee —the proof showing that he was the firm—that his company owed the judgment debtor nothing, was not indebted to him at the date of the service of garnishment, had never paid him any money, and yet admitted that he was working in the store of the company; and the proof tended to show, that the debtor was paid by Kaufman in that time over $400. The finding of the court that the answer was untrue was correct. This case is clearly distinguishable from Ex parte Collins, 49 Ala. 69.

The only ground of error insisted on in argument ,is the one that the defendant was a fictitious person.

There is no error in the record and the judgment is Affirmed.