Wright v. Swanson

B. F. SAFFOLD, J.

The answer of the garnishee, Swanson, not being satisfactory to the plaintiff, the court, by order, suffered him to file written interrogatories to the garnishee. The matter was then continued, by agreement of the parties, without objection. At the next term, the garnishee filed an answer to the interrogatories, but moved the court to set aside the order allowing them. He had not before objected to them, but, on his request, had obtained time to answer. His motion was granted, and he was discharged on his former' answer. The plaintiff objected to the discharge, and insisted on examining him orally. This the court refused to permit. The plaintiff had not previously proposed an oral examination, nor had he offered to contest the answer otherwise than by obtaining leave to file the interrogatories. The appeal is from the judgment discharging the garnishee, and the above stated rulings.

The manner of contest pursued by the plaintiff was according to the practice under Clay’s Dig., p. 63, § 44. The Revised Code (§ 2968-2540) prescribes a different mode. If the plaintiff is dissatisfied with the written answer, he is entitled to examine the garnishee orally. Or he may make oath that he believes the answer untrue, and have an issue made up under the direction of the court, to be tried by a jury, if desired by either party. — Rev. Code, § 2974., This latter proceeding is required to be commenced at the term the answer is filed.

The oral examination is not limited by the statute to the term when the answer is filed, though it would seem that unless some motion for that purpose was made during the term, it ought to be regarded as a w7aiver of the right. It was, however, entirely competent for the parties to agree that thei examination should be upon the interrogatories, and that it should be continued to the next term. Was not this virtually done in this case ? The plaintiff proposed to examine the garnishee in writing, and the latter agreed with him to postpone the matter until the ne&t court, in order that he might answer in the same manner. It was the right of either party to have the examination reduced to writing by exception, for the purpose of appeal. Eastern v. Lowery, 29 Ala. 454.

We regard the second answer of the garnishee as made under agreement. If the court should consider it not suffieiently responsive to the interrogatories, the plaintiff ought to be allowed to examine him orally.

The judgment is reversed and the cause remanded.