New Orleans, Mobile, & Chattanooga Railroad v. Long

Supreme Court of Alabama

New Orleans, Mobile, & Chattanooga Railroad v. Long

50 Ala. 498

DecidedJanuary 15, 1874

StatusPublished

This text of 50 Ala. 498 (New Orleans, Mobile, & Chattanooga Railroad v. Long) 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.

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New Orleans, Mobile, & Chattanooga Railroad v. Long, 50 Ala. 498 (Ala. 1874).

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Opinion

B. F. SAFFOLD, J.

The appellee, after commencing suit in assumpsit against Franklin W. King, procured process of garnishment against the appellant. The company answered, that no indebtedness was existing from itself to the defendant. The answer was contested, on issues of indebtedness at the time of the service of the garnishment, and at the date of the [499]*499answer. The plaintiff proved a contract between the defendant and the garnishee, entered into the day before the garnishment was served, by which the latter purchased from the other about $2,000 worth of material for working on railroads. The purchase-money had not been paid, but was to be credited with whatever amount the vendor was indebted to the company. The court charged the jury, that the plaintiff- was entitled to recover from the garnishee whatever amount (not in excess of the judgment against the defendant) the company was found to be indebted to the defendant on this contract, either at the date of the service of the garnishment, or of making the answer.

Section 2944 of the Revised Code requires the garnishee to “ answer, upon oath, whether he was indebted to the defendant at the time of the levy of the attachment, or at the time of making his answer, and whether he will not be indebted in future to him by a contract then existing,” &c. The charge is a correct application of this law to the facts related. Such was the construction given to it in Central Plank Road Co. v. Sammons & Dotes, 27 Ala. 880. The law seems to be a fishing one, and its tendency undoubtedly is to break up many contracts, where the debtor is unable to devote the whole of his earnings to the payment of his debts. But we think the circuit court gave to it the natural and proper interpretation of its terms.

2. The judgment obtained by Shawhan against the company, as garnishee of King, was admissible to reduce the recovery in this instance, if it had been necessary. But the appellant did not show it to have been so, and it did not strictly come within the issue made up or argued. Unless its amount would have made the judgment in this case extend beyond the garnishee’s indebtedness to the defendant, no injury is, done. The appellant does not claim that such was the case..

The judgment is affirmed.

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B. F. SAFFOLD, J.

The appellee, after commencing suit in assumpsit against Franklin W. King, procured process of garnishment against the appellant. The company answered, that no indebtedness was existing from itself to the defendant. The answer was contested, on issues of indebtedness at the time of the service of the garnishment, and at the date of the [499]*499answer. The plaintiff proved a contract between the defendant and the garnishee, entered into the day before the garnishment was served, by which the latter purchased from the other about $2,000 worth of material for working on railroads. The purchase-money had not been paid, but was to be credited with whatever amount the vendor was indebted to the company. The court charged the jury, that the plaintiff- was entitled to recover from the garnishee whatever amount (not in excess of the judgment against the defendant) the company was found to be indebted to the defendant on this contract, either at the date of the service of the garnishment, or of making the answer.

Section 2944 of the Revised Code requires the garnishee to “ answer, upon oath, whether he was indebted to the defendant at the time of the levy of the attachment, or at the time of making his answer, and whether he will not be indebted in future to him by a contract then existing,” &c. The charge is a correct application of this law to the facts related. Such was the construction given to it in Central Plank Road Co. v. Sammons & Dotes, 27 Ala. 880. The law seems to be a fishing one, and its tendency undoubtedly is to break up many contracts, where the debtor is unable to devote the whole of his earnings to the payment of his debts. But we think the circuit court gave to it the natural and proper interpretation of its terms.

2. The judgment obtained by Shawhan against the company, as garnishee of King, was admissible to reduce the recovery in this instance, if it had been necessary. But the appellant did not show it to have been so, and it did not strictly come within the issue made up or argued. Unless its amount would have made the judgment in this case extend beyond the garnishee’s indebtedness to the defendant, no injury is, done. The appellant does not claim that such was the case..

The judgment is affirmed.

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50 Ala. 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-orleans-mobile-chattanooga-railroad-v-long-ala-1874.