Opinion
6 Div. 462.
October 3, 1939. Rehearing Denied October 31, 1939.
Appeal from Circuit Court, Jefferson County; J. F. Thompson, Judge.
Garnishment proceedings by Mary L. Gladden, as administratrix of the estate of Roy L. Gladden, deceased (plaintiff in judgment), against Columbiana Savings Bank, garnishee. From a judgment discharging the garnishee, plaintiff appeals.
Affirmed.
Certiorari denied by Supreme Court in Gladden v. Columbiana Savings Bank, 238 Ala. 648, 193 So. 187.
M. B. Grace, of Birmingham, for appellant.
If garnishee files answer denying indebtedness to defendant, or does not suggest in answer that it has been notified another claims title to the money, and such answer is contested by plaintiff, on trial of the contest evidence on behalf of garnishee is not admissible, over timely objection, that the money belongs to a third person. Code 1923, § 8079; Bloch Bros. v. Liverpool, etc. Ins. Co., 208 Ala. 523, 94 So. 562; Fowler v. Williamson, 52 Ala. 16; Stovall v. Hamilton, 14 Ala. App. 484, 71 So. 63; Blackman Co. v. Collier, 12 Ala. App. 568, 68 So. 519; 28 C.J. 369, 395. The word "agent" after name of the depositor is merely discriptio personæ, and does not change the character of the deposit from that of an individual to that of a trust as a fiduciary deposit. Gladden v. Columbiana Sav. Bank, 235 Ala. 541, 180 So. 548; Enzor v. State, 27 Ala. App. 60, 167 So. 336; Id., 232 Ala. 257, 167 So. 340; Ferrell v. Ross, 200 Ala. 90, 75 So. 466; Jenkins v. Bramlett, 131 Ala. 597, 32 So. 575; Lowery v. Daniel, 98 Ala. 451, 13 So. 527; Pearson v. King, 99 Ala. 125, 10 So. 919; Bessemer Sav. Bank v. Anderson, 134 Ala. 343, 32 So. 716, 92 Am. St. Rep. 38. If the depositor may maintain an action against the bank in debt or assumpsit, based on the deposit, it is subject to garnishment. Gladden v. Columbiana Sav. Bank, supra; Sloss v. Glaze, 231 Ala. 234, 164 So. 51; Pettus v. Dudley Bar Co., 218 Ala. 163, 118 So. 153; First Nat. Bank v. Gaines, 27 Ala. App. 191, 168 So. 702; Roman v. Dimmick, 123 Ala. 366, 26 So. 214; Feore v. Mississippi Transp. Co., 161 Ala. 567, 49 So. 871; Cunningham v. Baker, 104 Ala. 160, 16 So. 68, 53 Am.St.Rep. 27; American T. S. Bank v. O'Barr, 12 Ala. App. 546, 67 So. 794; Alexander v. Pollock, 72 Ala. 137. The law presumes prima facie from the deposit, the name in which it is entered, that it belongs to the person in whose name it was deposited or entered. Gladden v. Columbiana Sav. Bank, supra.
Paul O. Luck, of Columbiana, for appellee.
The garnishee in answer did not admit that it was due or owing or had in its possession any property belonging to defendant and, consequently, the issues joined on the tender of issue did not come within the provisions of Code, § 8079. Under the answer the only fact in issue was whether or not defendant was the real beneficial owner of the funds in bank. Pettus v. Dudley Bar Co., 218 Ala. 163, 118 So. 153; Fowler v. Williamson, 52 Ala. 16; Stovall v. Hamilton, 14 Ala. App. 484, 71 So. 63; Allen v. Woodruff, 2 Ala. App. 415, 56 So. 247; Curtis v. Parker Co., 136 Ala. 217, 33 So. 935; Sloss v. Glaze, 231 Ala. 234, 164 So. 51; Bessemer Sav. Bank v. Anderson, 134 Ala. 343, 32 So. 716, 92 Am. St. Rep. 38; Roman v. Dimmick, 123 Ala. 366, 26 So. 214. Where funds are deposited by an agent for his principal, the law presumes that the funds belong to the principal, and in garnishment proceeding the issue would be whether or not in truth the funds belong to the debtor or whether or not the debtor was the real beneficial owner. Authorities, supra; Edward Thompson Co. v. Durand, 124 La. 381, 50 So. 407; Sun Ins. Co. v. Doster, 164 Ala. 572, 51 So. 414; Jefferson Co. Sav. Bank v. Nathan, 138 Ala. 342, 35 So. 355; Grand Lodge, etc. v. Harrison, 5 Ala. App. 373, 59 So. 307; Jasper Land Co. v. Riddlesperger, 26 Ala. App. 191, 157 So. 231. If the mere fact that the deposit was in the name of defendant as agent made out a prima facie case that the funds belonged to defendant, this presumption was rebutted by evidence of the garnishee. Bessemer Sav. Bank v. Anderson, supra.
A few principles of the law governing the disposition of this appeal may well here be set down, towit:
1. "The relative rights of the plaintiffs and of the garnishee depend upon the status existing when the writ of garnishment was served." Bloch Bros. v. Liverpool London Globe Ins. Co. et al., 208 Ala. 523, 94 So. 562, 564.
2. "If a garnishee * * * relies on a general denial of indebtedness, and an issue is formed contesting his answer, on the trial of such issue * * * The only fact in issue is, whether when the garnishment was served, or at the time of answer [or at any intervening time, we interpolate], there was an indebtedness contracted by the garnishee to the defendant, of which the defendant was, when it was contracted, the real beneficial owner." (Italics supplied by us.) Fowler v. Williamson, Garnishee, 52 Ala. 16.
3. It is true that when Mack D. Messer, appellant's "judgment debtor" in this case, deposited the money in appellee's bank to his individual credit — the deposit standing in the name of "Mack D. Messer, Agent" (Gladden v. Columbiana Sav. Bank, 235 Ala. 541, 543, 180 So. 548) — that fact, without more, showed prima facie, that it belonged to him, but not conclusively so. If it really belonged to his wife, the fact that her husband, to whom she entrusted it, deposited it in (the) bank to his own credit, did not change her title to it. Bessemer Savings Bank v. Anderson, 134 Ala. 343, 32 So. 716, 92 Am. St. Rep. 38.
4. Where a post master had two bank accounts, one in his own name in which he deposited his individual funds, and another, in his name with the initials "P. M." attached, in which he deposited the government funds, an attaching creditor could not reach the funds of the government held in the name of the post master, notwithstanding the post master could, in his own name, have recovered those funds in an action against the bank, since such recovery would have been for the benefit or the use of the government. Allen v. Woodruff, 2 Ala. App. 415, 56 So. 247.
5. "It is a general rule in garnishment that the plaintiff can obtain no greater beneficial relief against the garnishee than the judgment debtor would be entitled to, and that if the debtor's recovery would be limited to a mere legal title, without beneficial interest or right of enjoyment in himself, the proceeding must fail. A judgment creditor cannot have his debt satisfied out of property held in trust for another, no matter how completely his debtor may have exercised apparent ownership over it, unless it was upon the faith of such ownership that the credit was given." (Italics supplied by us.) Sloss et al. v. Glaze, 231 Ala. 234, 164 So. 51, 53.
Appellant held a judgment against Mack D. Messer, and instituted garnishment proceedings on same against appellee. Appellee answered not indebted; and appellant contested this answer, her "tender of issue" being set out in the report of this case on the first appeal — this being the second — which was transferred to the Supreme Court. See Gladden v. Columbiana Sav. Bank, 235 Ala. 541, 180 So. 548.
After appellant's tender of issue had been held sufficient on the former appeal, appellee stood on its general denial of indebtedness, and the cause proceeded to trial.
In such case, the law seems to be, clearly, as set out hereinabove, viz.: "The only fact in issue is, whether when the garnishment was served, or at the time of the answer [or at any intervening time], there was an indebtedness contracted by the garnishee to the defendant, of which the defendant was, when it was contracted, the real beneficial owner."
And upon this issue we can see no valid objection to the allowance of testimony brought forward on the trial by appellee tending to show that the wife of Messer, the defendant, was the real beneficial owner of the money shown to be on deposit in appellee bank to the credit of "Mack D. Messer, agent." And we hold the trial court did not err in admitting same.
All the line of cases cited by appellant to the effect that where there had been an "assignment" of the funds in the hands of the garnishee Code, Section 8079, must be complied with before such testimony is admissible seem to us to be beside the point. Here there was no "assignment;" but the simple question was as to whether or not Mack D. Messer, in whose name as "Agent" the deposit stood, was the "real beneficial owner" of the funds involved.
No other question is presented for our consideration. So it results the judgment must stand affirmed.
And it is so ordered.
Affirmed.