Ex parte Shriner

McCLELLAN, J. — Petition for mandamus to the judge of the circuit court of Mobile county. On March 11, 1913, Ralph W. Shriner instituted his action, stated in common counts, against Cooney Eckstein & Co., Inc. Summons was served on March 15, 1913. On March 31, 1913, a general appearance was entered by attorneys for the company. On May 14, 1913, the defendant filed pleas of the general issue. The petition contains the “suggestion,” filed by Cooney Eckstein & Co., Inc., to which we refer. It appears from the “suggestion,” filed by the company in the circuit court in the cause of Ralph W. Shriner against the company, that prior to January 7, 1913, one Renner was given judgment in the law and equity court of Mobile against W. A. Shriner for $300; that in aid of the satisfaction thereof writ of garnishment was regularly issued and served upon the company, which answered on January 30, 1913, that it was due, or it had $210 which, it had been notified, Ralph W. Shriner claimed; that pursuant to the statute (Code, § 4328) Ralph W. Shriner was notified to come in and contest the right to the sum thus admittedly due from, or in the hands of, the garnishee; that said Ralph W. Shriner appeared in the law and equity court in accordance with the notice and propounded his claim to the said sum due from, or in the hands of, Cooney Eckstein & Co.; and [35] that the contest is still pending in the law and equity court. The company’s request was that the circuit court suspend proceedings until the contest in the law and equity court should be determined, to the end that a double exaction of the company might be prevented. The plaintiff moved the circuit court to strike the “suggestion” upon the idea and ground that the “suggestion” of the pendency of the proceeding in the law and equity court was a plea in abatement; was filed too late for such pleading; was filed after general appearance, which under the rules of that court imports the pleading of the general issue; was filed contemporaneously with or subsequent to pleading in bar. The court overruled the motion. In effect, the prayer of this petition is that the circuit judge be compelled to sustain the motion to strike the “suggestion.” Aside from all other considerations, the circuit court had ample, apt, and conclusive authority for its action in overruling the motion to strike. Montgomery Gas Co. v. Merrick, 61 Ala. 531; Roman v. Dimmick, 123 Ala. 366, 26 South. 241; Crawford v. Slade, 9 Ala. 887, 11 Am. Dec. 463. The cases of Howell v. Howell, 171 Ala. 502, 51 South. 601, and Kaplan v. Coleman, 180 Ala. 267, 60 South. 885, cited for petitioner, are without application to the status shown by the “suggestion.” The writ is denied. Dowdell, C. J., and Sayre and db Graffeínried, JJ., concur.