Opinion
6 Div. 70.
December 3, 1931. Rehearing Denied February 4, 1932.
Arlie Barber and Amzie G. Barber, both of Birmingham, for appellant.
Where the garnishment is continued and the garnishee is ordered to answer orally and citation to so answer is issued during the same term at which the written answer is filed, the oral answer is the real answer and impounds all money or property in the hands of the garnishee between the time of service of the writ and the oral answer. Montgomery Candy Co. v. Wertheimer Swarts Shoe Co., 2 Ala. App. 403, 57 So. 54; First Nat. Bank v. Dimmick, 177 Ala. 571, 58 So. 658; Cox v. Thomas, 216 Ala. 282, 113 So. 261; Lady Ensley Co. v. Rogan, 95 Ala. 594, 11 So. 188. See Roman v. Baldwin, 119 Ala. 257, 24 So. 360; Calhoun v. Whittle, 56 Ala. 138; Ely v. Blacker, 112 Ala. 311, 20 So. 570; Bloch Bros. v. Liverpool, etc., 208 Ala. 523, 94 So. 562; Archer v. Whiting, 88 Ala. 249, 7 So. 53; Packard Motors Co. v. Tally, 212 Ala. 487, 103 So. 455; Weaver Sons v. Dumas, 212 Ala. 382, 102 So. 603; Jones v. Manier, 102 Ala. 676, 15 So. 437.
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellee.
There is no limitation as to the time within which a garnishee may be cited to appear for an oral examination, there having been no order of course discharging said garnishee. An oral answer made subsequent to a written answer is but a mere explanation of the written answer and dates from the time the written answer was made. Where the written answer is uncontested and the garnishee later answers orally, its liability is measured as of the date of written answer. First Nat. Bank v. Dimmick, 177 Ala. 571, 58 So. 658; Roman v. Baldwin, 119 Ala. 257, 24 So. 360; Gulf States Steel Co. v. Houston Furniture Co., 21 Ala. App. 580, 110 So. 476; Id., 215 Ala. 306, 110 So. 478; Easton v. Lowery, 29 Ala. 454; Henry v. McNamara, 114 Ala. 107, 22 So. 428. A contract of employment which by its terms makes its continuance at all times dependent upon the will of either party is not within the terms or meaning of the statute relating to the answer of a garnishee as being a contract in existence by which the garnishee would become indebted to the defendant in the future. Henry v. McNamara, supra. A garnishment process is in the nature of a suit by the plaintiff against the garnishee. Only debts for which an action of debt could be maintained against the garnishee can be the subject of condemnation against the garnishee. Dishman v. Griffis, 198 Ala. 664, 73 So. 966; Steiner v. First Nat. Bank, 115 Ala. 379, 22 So. 30; Cross v. Spillman, 93 Ala. 170, 9 So. 362; Roman v. Montgomery Iron Works, 156 Ala. 604, 47 So. 136, 19 L.R.A. (N.S.) 604, 130 Am. St. Rep. 106; Jefferson County Sav. Bank v. Nathan, 138 Ala. 342, 35 So. 355; Feore v. Miss. Tr. Co., 161 Ala. 567, 49 So. 871; Grand Lodge v. Harrison, 5 Ala. App. 373, 59 So. 307; American Tr. Sav. Bank v. O'Barr, 12 Ala. App. 546, 67 So. 794; Pettus v. Dudler Bar Co., 218 Ala. 163, 118 So. 153; Code 1923, § 9513; Fraser v. Allen Co., 19 Ala. App. 55, 94 So. 782; Cox v. Thomas, 216 Ala. 282, 113 So. 261.
The garnishee in response to the writ filed a written answer, and thereafter, but during the same term, the garnishment was continued and the garnishee was ordered to answer orally in open court on a day certain. Question, May he be interrogated as to payments made the defendant from the service of the writ up to the oral answer, or shall the inquiry be made only as to the period between the service of the writ and filing the written answer?
We think that the case of Lady Ensley Furnace Co. v. Rogan Co., 95 Ala. 594, 11 So. 188, is in point and holds that the inquiry may go to any indebtedness from the service of the writ to the oral answer. It is there held a garnishee is required to answer as to his indebtedness, not only at the time of service of the writ and at making his answer, but also during the intervening period, and, being required to make further oral answer, this liability continues until final judgment against him or until he is discharged. The above-cited case has not been overruled expressly or indirectly, and we regard it as a sound statement of the law.
The Ensley Case, supra, has been followed by the Court of Appeals in the case, Montgomery Candy Co. v. Wertheimer-Swarts Shoe Co., 2 Ala. App. 403, 57 So. 54.
The case of Henry v. McNamara, 114 Ala. 107, 22 So. 428, 430, did not involve this point as there was no oral answer requested or made. It was an appeal from a justice of the peace, and two written answers were made, one before the justice of the peace, and one in the circuit court and the issue involved was an indebtedness vel non and not the period which the answer should cover. The expression in said case, to wit, "The garnishee may safely answer the garnishment at once, in which event no money or effects subsequently coming into his hands, or debts subsequently contracted, are made by the statute subject to the lien created by the service," was not decisive of the case and should be limited or qualified to a written answer not questioned or contested, and in the absence of a demand for an oral answer, which would operate as a continuance or extension of the scope of the writ, and the inquiry as to indebtedness covers all time from the issuance of the writ until final judgment against him or until he is discharged. At any rate, it was evidently not the purpose of the court in this Henry Case to overrule the Ensley Company Case, supra, as it is approvingly cited.
The opinion of the Court of Appeals is in conflict with the Ensley Company Case, supra, and the judgment is reversed, and the cause is remanded to said court for further consideration in conformity with this opinion.
Writ awarded, and reversed and remanded.
All the Justices concur.
On Rehearing.
As we understand from the agreed facts as set out in the opinion of the Court of Appeals, there was no change in the status of the garnishee and the defendant from the time of the written answer until making the oral answer. The facts as set out are as follows: "* * * There being no question raised as to the existence of a continuing contract at the time of the filing of the written answer by the Garnishee whereby it would become indebted to the defendant for the payment of money in the future." In other words, that the contractual status had not changed at the time of making the oral answer. We did not hold or intend to hold that, if the contract between the parties terminated before the oral answer was made, the garnishee could be made to pay money he did not owe the defendant. What we held and meant to hold was that, if the garnishee owed the defendant when the written answer was filed, or when the oral answer was made, the writ would reach it, and that the written answer did not foreclose the plaintiff's right to inquire into and subject a debt accruing to the defendant between the written answer and making the oral one.