Saller Lewin & Co. v. Insurance Co. of North America

STONE, J. We do not propose in this case to consider the sufficiency of the affidavit of contest, the right of plaintiff in garnishment to amend the affidavit by striking out the words “ in law,” or the several rulings of the Circuit Court on that phase of the case. It is manifest that from anything appearing in the record, the case was not one that called for or justified a contest of the truth of the garnishee’s oral, or amended answer. We may add, however, that we have detected no error in the rulings of the court in reference to the affidavit of contest. The answer of the garnishee admitted there was a subsisting contract by policy of insurance, in force on the 6th March, 1876, the date of the fire, by force of which the garnishee became indebted to Levy, the judgment debtor, in the sum of fifteen hundred dollars; purely a money demand, for which a suit in debt, or indebitatus assumpsit, would have lain, at the end of the time when, by the terms of the policy, the loss was demandable. The insurance company was notified after the fire, but on the same day, that this claim was transferred by Levy to Jacobson ; but the company did not bind itself to pay the money to Jacobson. Five days afterwards, on the 11th, the writ of garnishment was served ; and some two months later the insurance company paid the loss in full to Jacobson, as transferree of the claim. This is the substance of the oral, amended answer of the garnishee. The statute, Code of 1876, §3302, makes provision for just such a case as this. It gives to the judgment creditor — • plaintiff in garnishment — the right to contest with the transferree the right to the money. When, in such case, a notice [224] is moved for by the plaintiff, and ordered by tbe court, tbe proceedings against tbe garnishee are suspended until the issue is disposed of. In the mean time tbe garnisliee becomes a stake bolder, and must hold tbe money until tbe result of the contest and trial determines to whom tbe money shall be paid. If, before tbe determination of tbe contest, or its abandonment (the plaintiff in garnishment is not compellable to contest the transferree’s right to tbe money,) the garnishee pays tbe money to tbe transferree, be does so at bis peril, and does not, in the least, diminish bis liability to have tbe debt condemned in bis bands. It does not rest with him to decide whether the transfer is bona fide. — Mobile & Ohio Railroad Co. v. Whitney, 39 Ala. 468, and authorities cited. When Jacobson was summoned, it became bis duty, if he claimed tbe money, to come forward and propound bis interest, and thus try tbe right with plaintiff in garnishment. If be failed to do so, we will not say that tbe garnishee, in a case like tbe present, would not have tbe right to use the transferree’s name, and thus tender an issue, and test tbe bona fides of tbe transfer. But, in tbe trial of such issue, be can assert no higher or better claim than tbe transferree could have asserted, if tbe money bad remained in tbe bands of tbe garnishee. The transferree being summoned, and failing to appear, and no issue being tendered, it becomes tbe duty of the court to give judgment against tbe garnishee, on tbe admitted indebtedness contained in bis answer. Reversed and remanded.