Montgomery Candy Co. v. Wertheimer-Swarts Shoe Co.

WALKER, P. J., A garnishee’s denial of indebtedness in his written answer to the writ may be overcome by the disclosure made on his oral examination, required as authorized by the statute; and when, on the facts as so disclosed, it is made to appear that the garnishee 406 was indebted to the defendant after the service of the writ, the plaintiff is entitled to judgment against the garnishee upon his answer, without contesting it. Code, § 4316;—White et al v. Kahn, 103 Ala. 308, 15 South. 595. In the case at bar the oral answer of the garnishee disclosed that between the dates of the service of the writ and of the oral answer it was indebted to the defendant, for salary or wages, payable at the end of each month, in an amount exceeding in the aggregate the amount of the judgment in favor of the plaintiff, and that this indebtedness was paid as it accrued by permitting the defendant to retain the amount of his salary out of collections made by him as an agent or traveling salesman of the garnishee; in other words, the mode of payment was to intrust the defendant with claims for collection, and to permit him to retain the amount of his salary out of the collections made. The writ operated to intercept the debt owing by the garnishee to the defendant while the proceeding was pending; and any payment by the garnishee to the defendant on a debt accruing to the latter during the pendency of the proceeding was at the risk of the garnishee, and could not avail to defeat the lien of the writ.—Lady Ensley Furnace Co. v. Rogan & Co., 95 Ala. 594, 11 South. 188. The salary payable to the defendant was a debt subject to the writ; and that the mode of payment resorted to did not have the effect of releasing it from the lien of the writ is well shown by the ruling on a quite similar state of facts in the case of Ely v. Blacker, Gerstle & Co., 112 Ala, 311, 20 South. 570. The court was not in error in overruling the garnish ee’s motion for a new trial. Affirmed.