(dissenting.) — I cannot concur in the opinion or conclusion in this case. I think this decision makes a radical departure from the practice and procedure in garnishment cases which has prevailed in this state for nearly 100 years. The abstract questions decided are: First, that the ansAver of the garnishee, if in AATiting and marked “Filed” by the clerk, ipso facto, becomes a part of the record, without any action on the part of the court; and second, that an oral answer of a garnishee cannot be contested. I think both propositions equally Avrong, and each is as wrong as Avrong can be, because the converse of both is true.
The opinion is professedly based upon the statutes of this state and the construction which has been placed upon them heretofore by this court. If this was a pioneer case, construing our statutes as they are now Avritten, I could concur as to the first proposition, because I think the construction placed upon these statutes by the Chief Justice, as to the first proposition, is in accordance Avith the general rule of pleading and practice, as announced by the text-Avriters and the courts *578of most of the states; but I think our statutes have been construed differently by this court for nearly 100 years, and have been reenacted, readop¡ted, and recodified, from time to time, with a different construction having-been placed upon them; and this court ought now to be bound by this construction. The Chief Justice and the majority, I think, are led into the error of law by an error of fact as to the genealogy of our statutes on the-subject. I think the whole opinion is based upon a false premise, which is stated in the first sentence of the opinion, as follows: “Prior to the Code of 1852 there was no provision in the statutes authorizing a- written answer by a garnishee in garnishment proceedings, the statute requiring him to answer orally in court.” The opinion concedes throughout that under the law in this state prior to the Code of 1852, in order to make-an answer a part of the record, it had to be made so by some act of the court identifying it or by referring to-it in the judgment entry, or by incorporating it in a bill of exceptions. I do not think the Code of 1852, wrought this change. I think the change wrought in-the law by the Code of 1852 was entirely different from that ascribed to it in the opinion; instead of changing it from oral to written answers, it went back to the law prior to 1840, and allowed the answer to be either written or oral; that is, it gave the plaintiff the option to have a written or an oral answer. The only difference in the statutes and practice prior to 1840 and after the Code of 1852, was that prior to 1840 the answer was made orally in open court, unless the plaintiff consented to a written one; while after the Code of 185-2 the answer was written unless the plaintiff demanded an oral one. But from 1840 to 1853,. the law required the answer to be in writing, if the plaintiff filed interrogatories, and in that case prohibited oral answers ex*579cept by “consent of all parties concerned.” This change-in the statute was referred to by Chilton, J., in the-case of Bostick v. Beach, 18 Ala. 82-83, rendered in 1850, after the statute of 1840 and prior to the adoption of the Code of 1852, and, therefore, when a written answer was not only authorized, but required, if the interrogatories were propounded under the statute, and. lie therein said: “But the answer, whether verbal or in writing, is no part of the record, unless made so by a bill of exceptions or by recital in the judgment entry.”
In 1849, and therefore Avhile written ansAvers Avere not. only alloAved, but required, Avhen interrogatories Avere filed, this court spoke as follows: “The garnishee anSAvered in writing, and it is clear from the minute entries that the answer at length was made a part of the-record, and can, therefore, be regarded as such” — citing Jones v. Howell, 16 Ala. 696. No other reasonable construction can be put upon this language than that it. would not have been a part of the record, though in writing, and both authorized and required to be in Avriting, but for the fact that it was made a part of the-record by the minute entry.
In 1855 this court, speaking on the same subject, and. after the adoption of the Code of 1852, said: “The record of this case Avould properly consist of the affidavit and summons, Avitli the return of the officer, and the ansAver of the garnishee either incorporated into the judgment or the bill of exceptions, or identified by an. entry of the court. * * * Neither the judgment against the original debtor, nor the execution issued upon it, is, properly speaking, any part of the record upon the proceedings in garnishment. They are simply evidence, and unless shoAvn in one of the modes indicated above, to have been legitimately made a part of the record, cannot be regarded as such when they do not: *580appear to be connected with the proceedings in any way, merely from the fact that they are certified as such by the clerk of the court”—citing Gunn v. Howell, 27 Ala. 676, 62 Am. Dec. 785.
In the case of Lewis v. Dubose, 29 Ala. 219, which was decided in 1856, and after the Code authorizing written answers, Walker, J., said: “It does not appear from the record that the plaintiff, under section 2540, required the garnishee to answer orally. We must intend that the clerk has -placed upon the record the answer in writing made by the garnishee under- the authority of the Code, and referred to in the minutes of the court, as being on file and constituting the basis of the judgment entry.” This clearly implies that it would not have been a part of the record but for the facts that it was on the record, was referred to in the minute entry and as constituting the basis of the judgment entry. In fact,- that opinion sets out the judgment entry as the authority for supporting the changes as follows: “It appearing to the court, from the answer of said garnishee now on file, that he is indebted to the defendant,” etc.
In the case of Bland v. Bowie, 53 Ala. 158, the court, through Brigkell, C. J., said, with regard to deposition filed being of record, or being made a part of the record: “This has been frequently affirmed in this court in reference to the answer of the garnishee, which may be oral or written, that it is no part of the record unless made so by bill of exceptions, or recital in the judgment entry. If, hoAvever, the judgment entry refers to and identifies an ansAver in Avriting as filed, it is considered as part of the record.”
In the case of Decatur Co. v. Crass, decided in 1892, Head, J., reviews the authorities upon this subject, and states the conclusion as follows: ' “The answer of a *581garnishee, though iu writing, is not a part of the record unless made so by bill of exceptions or recitals in the judgment entry.—Gaines v. Beirne, 3 Ala. 114; Saunders v. Camp, 6 Ala. 73. * * If it is in writing and is identified by the judgment entry it will be considered a part of the record.—Jones v. Howell, 16 Ala. 696. A recital in the judgment entry that the garnishee has filed an ansAver avüI authorize this court to look to an answer found in the transcript as a part of the record.—Price v. Thomason, 11 Ala. 875; Fortune v. State Bank, 4 Ala. 385; Stubblefield v. Hagerty, 1 Ala. 38. But, if there is conflict between the recitals of the judgment entry of AAdiat the ansAver contains, and the ansAver found in the transcript, verity Avill be accorded to the recitals of the judgment entry.—Gaines v. Beirne, 3 Ala. 114.”
In the case of Jones v. Manier & Son, 102 Ala. 676-678, 15 South. 437, it is said that “an ansAver of the garnishee is not a part of the record proper, and cannot be considered on appeal, unless made a part of the record by a bill of exceptions.”
There are many other cases cited in brief of counsel for appellant and appellee, and, as I read the cases, this is the first in AAdiich the court has ever held that the mere filing of an ansAver in the court makes it a part of the record.
As I have stated above, I concede the rule to be different in other states, and that it should be different here, if the ansAver of a garnishee was treated as other pleadings in civil actions in courts of law, or as an an-SAver in chancery; but our court has never treated it as a part of the pleadings, but has always treated it as mere evidence, or as occupying an anomalous position. The position of this state and of this court, and of others, upon this subject, is Avell expressed by the editor *582•of Encyclopedia of Pleading & Practice, in these words: “The nature of the answer of the garnishee is variously regarded in the several states; in some it is a pleading, and as such, subject to the same rules; while in others it is mere evidence, or occupies an anomalous position.” —'Volume 9, 829. In a note to the text the annotator says: “In some states, as in Alabama, the answer is not •considered a part of the record unless made so by a bill of exceptions, or recitals in the judgment entry; and this although it be in writing”—citing Decatur Co. v. Crass, 97 Ala. 519, 12 South. 43, and cases cited therein.
By an examination of the text-writers upon this subject, and of various notes thereto, it will be found that in most states it is treated as pleading, and, as such, of •course, the filing of it, if in writing, would make it a part of the record; but in states like Alabama, where it is treated as mere evidence, or as occupying an anomalous position, the mere filing will not have the effect of making it a part of the record. The evil effect of •changing this rule at this late day is made apparent beyond question in this concrete case. -Here there was a judgment nisi rendered against the garnishee, of which he had due notice and the judgment was never set aside until after the garnishee’s answer was made. Surely the garnishee could not set aside and annul this judgment nisi by merely filing a written answer, even though it was indorsed by the clerk. But this is the effect that is given to it. After the judgment nisi was entered, which could only be done for the want of an answer, should not the solemn judgment of the court be given more credence than a mere loose paper, prepared by a party, and marked “Piled” by the clerk, without any judicial action in the matter? Any answer filed by the garnishee, while this judgment was standing against the *583garnishee, was necessarily no part of the record in that case. The garnishee had no right to answer until he had that judgment nisi set aside and obtained an order ■of the court allowing him to ansAver. A conditional judgment- of the court can be rendered only by the court, and, of course, can be set aside only by the court.
It will be found upon ah examination of the statutes and decisions upon the question involved, that there has never been a time in this state when both an oral and a Avritten answer of the garnishee Avere not allowed. While the statutes, up to 1840, contemplated an oral answer only, Avritten ones Avere alloAved. From 1840 to the adoption of the Code of 1852 (Clay’s Digest, p. 63, § 44), the statutes authorized the plaintiff to file written interrogatories to the garnishee, and if such Avere filed, the statute required the answer to be in writing and prohibited its being oral “unless by the consent of all parties concerned.” From the adoption of the Code of 1852, the statutes contemplated a Avritten answer without interrogatories, but authorized the plaintiff to demand an oral ansAver in the presence of the court. But this court has uniformly held, as I read the cases, under each of these three separate statutory systems, that in order for the ansAver, whether Avritten or oral, to become a part of the record it must be referred to in the minute entry, or be embraced in the bill of exceptions.
It Avill be observed that neither the Code of 1852 nor any subsequent Code has ever required that the answer should be in writing and not oral; it was merely required that the garnishee should ansAver upon oath according to the terms of the garnishment or citation, sometimes saying the one or the other, and sometimes both. The citation may require him to answer orally in the beginning. So, there is nothing in the statute now, and has not been since the Code of 1852, that re*584quires tlie ausver to be in writing. Under the law up to 1840, the practice grew up of receiving a written an-SAver, unless an oral examination was required. The Code of 1852 did nothing but recognize this practice. The only change in the law which it made was to deprive the plaintiff of the absolute right of having a written answer, which he had from 1840 to the adoption of the Code of 1852, provided he filed written interrogatories. So, instead of the Code of 1852 requiring the answer to be written instead of oral, its effect was to deprive the plaintiff of the right to file written interrogatories and thereby obtain a written answer.
It has been repeatedly held by this court that the phrase, in the statute, “may, if required by the plaintiff,” is mandatory; that the word “may” as used means must, and that the court has no right to deprive the plaintiff of this absolute right given him by the statute. He has this right as well before written answer, as afterwards. So, under the law as it now is, and as it has ever existed since the Code of 1852, the plaintiff may in the first instance require an oral examination of the garnishee without requiring him to answer in writing; or he may, after written answer at any time before the garnishee is discharged, require him to be orally examined in the presence of the court. I do not think the argument used to support the opinion reached is sound. The whole argument is based upon the theory that a written answer must be filed within the first three days of the term. I do not think this is true. The statute requires no such thing, and has never so required, since the Code of 1886. But if this were true, it would prevent the conclusion reached in this case, because, it is without dispute in this case that .no answer was filed by the garnishee, nor attempted to be filed within the first three days of the term; but, on the contrary, a *585judgment nisi was taken against him for a failure to ansAver — conclusive proof that he had not answered within the time specified. Hoay he could, without the aid of the court or the consent of the plaintiff, file an ansAver thereafter, Avhich Avas incontestable by the plaintiff, and which Avould authorize the court, 10 years thereafter, to set aside the judgment nisi, and to discharge him from his ansAver, Avhich he filed Avithout the knoAvledge or consent of either the court or the plaintiff, but Avith only that of the clerk, is more than I can understand. It looks to me as though it Avas a legal impossibility, yet this is the effect of the decision in this case, a mere Avritten ansAver found in the file of papers, indorsed by the clerk as filed, is allowed to contradict the solemn record of the court, and to authorize the setting-aside of a judgment nisi rendered at a prior term of the court. And AA-hy such an ansAver, though it is not math* to appear that it Avas ever brought to the attention <if the court during a dozen terms or more, should l>revent one thereafter filed by consent of the parties and of ihe court from being contested at the very time it is filed, is more than I can understand.
Í IiaA'e been unable to find any decision of this court AAhich, in my opinion, supports the conclusion reached; in fact, none of those cited in support of the conclusion are in point, but, on the other hand, every one of them in AA’hich the question here discussed was referred to, holds that the ansAver, in order to become a part of the record, must be referred to and identified as such by the minute entry, or must be embraced in a bill of exceptions. There is not one of them Avhich supports the conclusion that an ansAver Avlvich has never been judicially recognized and identified as such by the court, can become a part of the record by the mere filing by the garnishee and indorsement hy the clerk.
*586The case most strongly relied on in the opinion is that of Lehman, Durr Co. v. Hudmon Bros., 79 Ala. 532. As to that case, it is sufficient to say that no point or question like the one here decided, was even raised or attempted to be decided. There, an answer had been filed in the justice court and was contested in that court, which resulted in a judgment which was appealed to the circuit court. While it was said in that opinion that the garnishee’s answer was on file, denying all indebtedness and liability, and that no judgment could be rendered against him on it, it was also shown that it was controverted, but the plaintiffs failed to make up or tender an issue, and that they could claim no judgment because they had failed to set forth any claim to have a judgment on the contest. The opinion in that case recites that after the case was appealed to the circuit court, a process of garnishment was sued out and served, and there was an answer of the garnishee denying all indebtedness and liability, and that the answer was controverted by the plaintiff’s attorney.
As to the second proposition expressed in the majority opinion, as follows: “There is no authority in the statute for filing a contest of an oral answer of a garnishee” — this, in my opinion, is a more serious error than the other proposition, which was to the effect that “the answer of a garnishee when in writing and on file becomes a part of the record in the garnishment proceeding without any act of the court.” If this is to be the law, then the plaintiff is certainly deprived of one or the other of two rights which are given him by the statutes.
It is certain that the statutes now give, and have always in this state given, the plaintiff the absolute right to have an oral answer from the garnishee made in open court. The plaintiff can now and could always choose *587as to whether he would have an oral answer. The statute now directs that “the garnishee must answer under oath according to the terms of the writ.” This is the first, or original, answer. The plaintiff may direct when and how that answer shall be made, except in so far as the statute directs the terms of the garnishment or citation thereof. The statute does not now specify, and has not since the Code of 1886 directed at what term or what day of the term the answer shall be made, and it never directed Avhether it should be in Avriting or he made orally, except that, from 1840 to 1858, it allowed the plaintiff to file interrogatories, and the answer was required to be in Avriting, unless all parties concerned consented to an oral answer. Since the Code of 1852, the plaintiff is allowed, after consenting to or requesting a written ansAver, if not satisfied therewith, to require at any time before judgment discharging the question an oral answer in open court.
It is true that a practice has groAvn up under the statute, of issuing a garnishment or citation without specifying thereon Avhether the answer shall he oral or Avritten; and consequently the original ansAver is usually in Avriting, and if the plaintiff is not satisfied therewith, he requires an oral answer thereafter; but it has never been decided, and I submit that the statutes are not susceptible of a construction that would vvarrant its being decided that the plaintiff has no right to'have the original ansAver oral instead of in Avriting.
It will be observed that the statute now requires, and has always required, the garnishee “to appear and answer under oath.” It has never expressly directed Avhether this ansAver should be oral or in Avriting, except under certain conditions mentioned in the statute of 1840 (Clay’s Digest, p. 63, § 44). The statute has sometimes directed that the answer should he made at *588a certain term and Avithin certain days of the term— sometimes Avithin the first four days and sometimes Avithin the first three days'; but noAV, and ever-since the Code of 1896 (section 2175) the statutes directs merely that the garnishment issue “requiring the garnishee to appear at a specified time and ansAver upon oath.”— Code 1907, § 1301. Section 1316 of the Code provides that “the garnishee must ansAver under oath, according to the terms of the garnishment, and may if required by the plaintiff, be examined orally in the presence of the .court.” This clearly shows that the garnishee may be required by the plaintiff, in the original writ of garnishment served upon him, as well as subsequently, to be examined orally in the presence of the court. Merely that the practice is to allow the original answer to be in writing and to be filed in court, does not at all conflict with the ways had, to say whether the ansAver shall be oral or in-writing. It has never been held, and I do not think that this court would hold, that if the Avrit of garnishment or citation required the garnishee to appear and ansAver orally in the presence of the court, the garnishee would have a right to disobey this Avrit and ansAver in Avriting; but I concede that if the Avrit does not direct how he shall answer, he may answer in writing if he choose, and this is the practice.
The statute unquestionably gives the plaintiff the right to contest the answer, provided he does so at the term at Avliich the ansAver is made. Noav, if he should demand an oral ansAver — which I think he has the undoubted right to do — and the oral answer Avas the only one made, then, if the plaintiff cannot contest this oral ansAver, as this opinion holds, then certainly the plaintiff is deprived of his statutory right to contest at all. He is therefore necessarily deprived of one of his rights; that is, to have an oral answer or to contest.
*589On the other hand, suppose the answer of the garnishee is frivolous, insufficient, or not made within the time and manner directed by the garnishment, writ, or citation, and for this reason the court should disallow it, and on request of the plaintiff the court should require an oral answer in the presence of the court, is it possible that the plaintiff could not contest such oral answer? I do not think the statutes ever contemplated such a result.
I do not deny the proposition that if the answer is in writing, and no objection is taken thereto on that account, or even if objected to and an oral answer is demanded, it must be contested during the term at which it is'made. This is true, because the statute says so, and this court has often held that it is mandatory in this respect, and that a contest cannot be instituted at a subsequent term, although the issue may be formed at a subsequent term and tried, provided the contest or denial was made during the term at which the answer was made; and there is no difference in this respect whether the answer be oral or written.
If the plaintiff consents for the garnishee to answer originally in writing, or if he fails to have the garnishment or citation to direct whether the answer shall be oral or written, the garnishee may then answer in writing; and if the plaintiff fail to object to this answer at that term, either by denying, contesting, or demanding an oral answer, he may at a subsequent term demand an oral examination of the garnishee; but in this case, the oral examination is a mere continuation of the written answer, and dates from the time it was made, and is for the purpose of determining whether or not the plaintiff is entitled to a judgment upon the answer. Under the decisions of this court the plaintiff would not be entitled to contest that answer at a sub*590sequent term, but if he had originally demanded an oral answer, or if at the time at which the answer was made, he had objected to the answer for insufficiency, or because in writing, or upon any other proper ground, and had demanded an oral answer, and that answer was not made until the succeeding term, he would unquestionably have the right to contest that answer, because until the answer was made he would not know whether he desired to contest it or not. ■ ■
It must be said, however, that the case of Friedman Bros. v. Cullman, etc., Ass'n, 124 Ala. 344, 27 South. 332, does support the majority opinion upon this proposition that an oral answer cannot be contested; but the other cases cited in the opinion do not support it, and the converse was expressly decided in so many words in a later case of Jofferson County Bank v. Nathan, 138 Ala. 342, 35 South. 355. It was there expressly decided that the oral answer of a garnishee may be contested by the plaintiff, and the case of Roman v. Baldwin, 119 Ala. 257, 24 South, 360, cited in support of the proposition. This last-mentioned case is cited in the majority opinion to support the proposition that an oral answer cannot be contested. The truth is that the case of Roman v. Baldwin does not expressly support either proposition, but inferentially supports the proposition that an oral answer may be contested.
I do not think that there is any doubt that the majority opinion in this case is'wrong, and that the judgment of the lower court should be reversed, and that the judgment nisi should be made final in the lower court, or at least, that the plaintiff should be allowed to contest the answer of the garnishee.