Broadway v. Jones

*338 GARDNER, J, Appellees brought suit against O. H. Broadway on two promissory notes, and had garnishment proceedings issue to the Tennessee-Alabama Lumber Company. The garnishee admitted indebtedness to C.' H. Broadway, the defendant, and suggested Lawrence Broadway as claimant of the funds in hand. In the present case issue was joined between plaintiffs (appellees here) and appellant, Lawrence Broadway, the jury returning a verdict in favor of the plaintiffs, from which the claimant has prosecuted this appeal. The refusal of charges 2 and 3, requested by the claimant, constitutes the only question argued by counsel for appellant. It is insisted by counsel that these charges correctly state the rule to the effect that a debt due defendant and another not a party de fendant, cannot be reached by garnishment, citing 28 C. J. 97, 20 Cyc. 1070, and Winston v. Ewing, 1 Ala. 129, 34 Am. Dec. 768. Counsel for appellees takes no issue with appellant’s counsel as to the law, but insists that the argued matter is her abstract, and that, in any event, the court -had sufficiently instructed the jury upon any phase of the case justified by the proof. The evidence has been carefully read and considered, and we find the only issue it presents is whether the funds were those of defendant C. H. Broadway or his son, Lawrence^ the claimant. There was no contention of joint ownership or partnership. These funds represented the proceeds of the sale of certain lumber. The defendant did not testify. Speaking in reference to this particular lumber, Lawrence Broadway, the claimant, said: “This lumber I sold belonged to me, and my father had no interest whatever in it.” The court in its oral charge made very plain to the jury the issue they were to determine, but out of abundance of caution further instructed the' jury that, if defendant and claimant were partners, and each had an interest in the lumber, plaintiff could not prevail in this action. We find no evidence as to joint ownership or partnership, and very clearly no occasion presented itself for any distinction being made between joint owners and a partnership. The only real issue presented by the proof was whether the funds were those of defendant or belonged to'the claimant, and upon this issue the court very clearly charged the jury. We are therefore of the opinion there was no reversible error in the refusal of these charges numbered 2 and 3, and that the judgment appealed from should accordingly be here affirmed. Affirmed. ANDERSON O. J., and SAYRE and MILLER, JJ., concur.