Sun Insurance v. Aberdeen Clothing Co.

47 So. 722, 157 Ala. 526, 1908 Ala. LEXIS 197

• Court: Supreme Court of Alabama
• Decided: November 26, 1908
• Status: Published

Opinion

SIMPSON, J.

— In this case the garnishee filed an answer denying indebtedness, and the plaintiff filed an affidavit stating that “he believes the answer heretofore filed in the above cause by the garnishee is untrue.” Interrogatories were filed to the garnishee, which were not answered, and thereupon a judgment by default was rendered against the garnishee, and a writ of inquiry executed, resulting in a judgment final against the garnishee. The statute, in regard to the contest of the answer of a garnishee, provides that the plaintiff may controvert the answer by making oath 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 allege in what respect the answer is untrue.” Code 1896, § 2196; Code 1907, § 4325. The record does not show that any such issue was made up. Consequently there was no pleading upon which a judgment by default could be rendered. —Lehman, Durr & Co. v. Hudmon Bros.. 79 Ala. 532, 534; Id. 85 Ala. 135, , 4 South. 741; Birmingham Nat. Bank v. Mayer, 104 Ala. 634, 639, 16 South. 520. Section 4055 of the Code of 1907 has no application to proceedings against a garnishee.

The judgment of the court is reversed and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Denson and McClellan, JJ., concur.