Cox v. Thomas

SOMERVILLE, J. The record shows that the garnishee, Cox, filed his written answer August 23, 1922, denying his indebtedness to the defendants, and stating that he could not say whether he would in future be indebted to them until he had completed certain work which they had contracted to do, but had abandoned unfinished. This answer was not controverted, but on January 13, 1923, at the next ensuing open session of the circuit court, plaintiff moved the court for an oral examination of the garnishee, and this motion was granted, and the cause continued. Thereafter, on December 13, 1923, the garnishee filed another answer, denying any indebtedness at all, and claiming that defendants were indebted to him. It further appears that the oral examination was held on July 17, 1924, the garnishee “denying liability,” and that plaintiff thereupon filed “his contest of such answer.” In First National Bank v. Dimmick, 177 Ala. 571, 589, 58 So. 638, 664, in the originally dissenting opinion of Mayfield, J., which on rehearing was adopted as the opinion of the court, it was declared: “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 subsequent 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.” Under the principles there affirmed, and under our decisions many times repeated, if the garnishee had stood upon his answer of August 23, 1922 — although the plaintiff could have demanded an oral examination during the ensuing term, or at any time before the garnishee was discharged (Roman v. Baldwin, 119 Ala. 257, 24 So. 360), and would have been entitled to judgment against the garnishee if the oral examination showed indebtedness to the defendant, even without filing any contest (Montgomery Candy Co. v. Wertheimer-Swarts Shoe Co., 2 Ala. App. 403, 57 So. 54; White v. Kahn, 103 Ala. 308, 15 So. 595) - plaintiff’s contest of that answer would have come too late because not filed during the term when the answer was filed; there being no order of the court extending the time for contesting, either expressly or by implication (Roman v. Baldwin, 119 Ala. 257, 260, 24 So. 360). But when, after plaintiff’s demand for an oral examination, the garnishee voluntarily appeared again and filed another complete answer, he necessarily waived his original answer and his rights thereunder, and subjected himself to the intervening order of the court for his oral' examination. This •preserved plaintiff’s right to contest the oral answer or the written answer, or the answer as a whole, provided he did so during the term when the oral answer was had; that is, during the term from the first Monday in January through the last Saturday in June. *285 First National Bank v. Dimmick, 177 Ala. 571, 590, 58 So. 658. The record shows that the contest was filed on the same day with the oral answer, and it was therefore filed in time. But the garnishee insists that when he was made a party defendant to the suit he was ipso facto discharged as garnishee. Conceding, without deciding, that one person cannot properly be made both a codefendant and a garnishee in the same suit (see 28 Corp. Jur. 51, § 57), we know of no authority for holding that the objection thereto may not be waived. Unquestionably, in the instant case, the garnishee waived his right to be discharged as garnishee after he was made a co-defendant, if he had such a right, by appearing and objecting to being made a party defendant, and procuring an order of the court •striking him as such a party, and waived the right also by answering as garnishee after he had been made a defendant. For these reasons this objection to the maintenance of the garnishment suit was not available to the garnishee, and his motion was properly overruled. By objection to the introduction in evidence of the contract by which Cox sublet a part of the road work to Carpenter & Son and L. P. Mason, and also by a requested instruction to the jury, the garnishee invoked, and sought to apply herein the principle that no action at law lies in favor of one partner against his copartner upon any obligation or claim growing out of the partnership relation and business until there has been a settlement of that business, and a balance struck between them. Phillips v. Lockhart, 1 Ala. 521; Merrill v. Smith, 158 Ala. 186, 48 So. 495; Brown, Adm’r, v. Burnum, 99 Ala. 114, 12 So. 606. This of course predicates the existence of a partnership between Cox and Carpenter & Son with respect to this road construction; the theory being that there was such a partnership between Carpenter & Son and L. P. Mason, and that by buying out Mason’s interest in the enterprise Cox took his place as a copartner with the Shepherds. This theory is not tenable for several reasons. In the first place, though the subletting by Cox was to “Carpenter & Son and L. P. Mason,” there is nothing to show that the work was in fact prosecuted by them in partnership or as a joint enterprise, or that they ever considered themselves as partners. Again, had they actually begun the work as partners, Mason’s assignment of his interest to Cox on July 13, 1922, followed by his complete withdrawal, worked an immediate dissolution of the partnership (Monroe v. Hamilton, 60 Ala. 226; Goldsmith v. Eichold, 94 Ala. 116, 10 So. 80, 33 Am. St. Rep. 97), and thereafter the earnings of Carpenter & Son' under this contract was due to them alone. And finally, Cox himself dealt with Carpenter & Son as independent contractors and not as copartners with himself. We conclude that whatever was due to defendants from Cox for work done under the contract in question could have been recovered by them in an action-of debt, or indebitatus assumpsit, after the completion of the contract for them by Cox, and hence can be reached by garnishment at the suit of their creditors. Craft v. Summersell, 93 Ala. 430, 9 So. 593. In reaching this conclusion, we have not taken into, account the sworn plea of Cox, found in the record, that “he is not, and never has been, a partner of the firm of W. W. Carpenter & Son, * * * nor a partner of either of them under any firm name whatever.” Whether there was or was not a partnership arrangement between Cox and Malone is not material to this case. However, there is no evidence of any such arrangement, so far as the Carpenters’ part of the work is concerned. Exceptions were reserved to numerous rulings on the admission of evidence. We have examined all of these, and, while several irrelevant matters seem to have been admitted, none of them were of material importance, or could have affected the result. The minutes of the circuit court showing a judgment in favor of. the plaintiff, Thomas, against W. W. Carpenter and Charley Carpenter (shown to be his son) for $955 was properly received in evidence without proof of service of process on them; the court’s jurisdiction of their persons being presumed. White v. Simpson, 107 Ala. 386, 18 So. 151. Nor was it material that the judgment entry did not show that the judgment was against them as partners. That it was for a joint partnership debt was abundantly shown by, extrinsic evidence, and it was a proper foundation for a judgment against the garnishee for any debt due from him to Carpenter & Son, a partnership composed only of the two judgment defendants, since Carpenter & Son could have maintained a suit against Cox, suing merely in their individual names, without averring that they were partners. Long v. Kansas City, etc., R. Co., 170 Ala. 635, 639, 54 So. 62. Whether or not Cox was indebted to Carpenter & Son, and in what amount, if any, were clearly questions of disputed fact for determination by the jury; and, in view of the specific evidence of the amount of work done by the Carpenters, and the price stipulated to be paid therefor, coupled with Cox’s admissions of a substantial indebtedness to them under the contract, we are not warranted to disturb the conclusions of the jury, notwithstanding the contradictory evidence offered by Cox. It results that the judgment of the trial court must be affirmed. Affirmed. ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.