Bloch Bros. v. Liverpool London Globe Ins. Co.

Upon reconsideration of the pertinent doctrine of Fowler v. Williamson, supra, the court remains convinced of the propriety of its application to the cause under review. See Rood on Garnishment, § 371, and note 32. That author also rests portions of the text in sections 317, 357, upon Fowler v. Williamson, supra. The objections stated on the trial by the plaintiffs to the testimony designed to show Shuptrine's asserted transfer of the quoted instrument to the Selma Bank was expressed in such specific terms as to invoke the doctrine of the cited case, requiring the pronouncement of error in the trial court's ruling adverse to the objection. This court has not undertaken to pass upon the validity or efficacy of the asserted assignment. The question can only be seasonably contested when the issue is appropriately presented. That issue was not before the trial court when this evidence of assignment was erroneously admitted.

Rowland v. Plummer, 50 Ala. 182, Winslow v. Bracken, 57 Ala. 368, and Jones v. Lowery Banking Co., 104 Ala. 252, 16 So. 11, cited on appellee's briefs, are not applicable to the question presented by the objections taken to the admissibility of the testimony relating to the asserted assignment of the instrument involved; so for the reason that in them claimants appeared and contested the issue with the plaintiff, whereas in this instance no claimant either appeared or was brought in.

This garnishee's answer was an unqualified denial of indebtedness to the defendant (Shuptrine). The issue it tendered did not include the matter of asserted assignment of the instrument in question. Fowler v. Williamson, supra. When appropriately presented, a contest between the plaintiff and a claimant is "in many respects a distinct and independent suit." Ex parte Opdyke, 62 Ala. 68, 70. Under the practice thus established, a garnishee cannot claim or assert the option of litigating with the plaintiff the validity or efficacy of an assignment, made by the defendant to a third party prior to service of the writ of garnishment; the issue tendered by a general denial of indebtedness to defendant not comprehending the matter of such an assignment by the defendant. Authorities, supra.

Whatever may be the rule elsewhere prevailing, it is settled in this jurisdiction that "a voluntary payment of the debt by the garnishee, after service of the garnishment, will not defeat it. Its service creates a lien on the debt, which continues until it is dissolved by the discharge of the garnishee, under the order of the court from which it issues." Payment by a garnishee, after writ served, is at "his own peril"; and, if the garnishee "sustains loss, it results from his own neglect." Calhoun v. Whittle, 56 Ala. 138, 143; Rood on Garnishment, § 192. No distinction can be taken between garnishees upon whom service is had through agents and those personally served. The perfection of a valid service of the writ of garnishment upon an agent of the garnishee is as presently effective as if the process had been served upon the garnishee personally. The payment of any sum to the Whitney Bank by the garnishee on January 7th, after the service of the writ on Helmer on January 6th, is not a factor in the cause.

It is urged for the first time on rehearing that no such judgment was rendered as would support an appeal. The memorial of the court's action on the trial below is not in proper form; but, following the view prevailing on the appeal in Ober Son Co. v. Phillips-Burttoff Mfg. Co., 145 Ala. 625, 40 So. 278, this contention cannot be approved. The recital of the court's action in this instance discharged the garnishee, if not reversed.

The rehearing is denied.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *Page 527