By section 2546 of the Code of 1853, the plaintiff is authorized to controvert the answer of the garnishee, and an issue is to be made up under the direction of the' court, in which the plaintiff must allege in what respect the answer is untrue. In this case no such proceeding was had on the filing of the answer. Nor do we intend to intimate that it should have been controverted in order to authorize the plaintiff to have the notice issued to the alleged transferree of the debt, and subject it to the payment of the debt due from the defendant in attachment or judgment.
Section 2549 of the same Code, requires the court to suspend proceedings against the garnishee whenever, by his answer, it appears he has been notified that another person claims title to, or an interest in, the debt or property which by the answer is admitted to be due or in possession of garnishee, and cause a notice to issue to such person, to appear at the nest term of the court, and contest with the plaintiff the right to the money or property.
Section 2550 provides that if such person appear, he must be required to propound his claim in the property or debt in writing, and make oath thereto, upon which the plaintiff must take issue in law or in fact, and if the issue is found for the plaintiff, judgment must be rendered against the garnishee on his answer; if for the contestant, the garnishee must be discharged. In this case the contestant, as he is called in the Code, appeared at the term of the court to which he was cited and propounded his claim according to the requirements of the Code. Several terms thereafter, his death was suggested without any issue having been taken by plaintiff as required by the statute. And in 1867, the court below, without having made any order reviving the cause against the personal representative of the contestant, abated it as to him and rendered judgment final against the garnishee.
By section 2557, it is provided that if the contestant die after notice to appear and contest with the plaintiff the *307right to the money or property in the hands of the garnishee, the suit may be revived in the name of his legal representatives.
In the case of Mock v. King, 15 Ala. 68, this court, in construing statutes having similar provisions to those of the Code, say: “ But it is the duty of the plaintiff to proceed with proper diligence in bringing such transferree before the court. If he neglect to have such notice issued until several terms after the answer of the garnishee has elapsed, the court may, in the exercise of the discretion which is vested in the judge over the subject of continuances, refuse to grant a continuance, and may discharge the garnishee, if his answer does not warrant a judgment against him.” And in that case the court sustained the ruling of the court below in discharging the garnishee. If it is the duty of the plaintiff, and not of the garnishee, to have the notice issued to the supposed claimant, then it would seem to follow that it is the duty of the plaintiff and not the garnishee, to have the cause revived against the personal representative of the contestant, when the latter dies before the contest is ended. And until it is so revived, no judgment can be rendered against the garnishee. Under the view we take of this cause, we can not see what damage resulted to the appellant .from the abatement of the cause, on the motion of plaintiff, as to the contestant; and the exception to the ruling of the court below on this matter, raises, at most, a question of error without injury. Upon the abatement of the cause as to the contestant, on the motion of the plaintiff, the garnishee was entitled to be discharged upon the motion made by him. — See authorities on brief of counsel for appellant; also, see section 2542, Revised Code.
And the cause as to the judgment against the garnishee is reversed, and this court, proceeding to render such judgment as the court below should have rendered, orders and adjudges that appellant be discharged, and that appellee pay the costs of this court, and the costs of the court below accruing on the garnishment proceedings.