SAUNDERS v. CAMP

SAUNDERS v. CAMP. 1. When the judgment entry shews a sufficient admission to charge the garnishee, his answer, although in writing, and sent up with the transcript, can not be looked into to impeach the judgment, unless it is referred to in the entry, or made a part of the record, by some specific exception. Weit of Error to the County Court of Sumter County. This is a proceeding by Camp, as the judgment creditor of one Chiles, to subject a debt due to the latter by Saunders. The judgment entry recites, that the garnishee answered an indebtedness of 119 dollars, for which judgment was given, and on which, this writ of error is prosecuted. The transcript sent to this court, sets out an answer of Saunders, in writing, purporting to have been sworn to in open court, the 16th February, 1343, (the judgment is entitled ofFebruay term, of the same year) but no reference is made to it in the judgment entry, nor does it appear that any exception to the judgment •was then made. This answer states, that the garnishee, on the 4th January, 1843, was indebted to Chiles, in the sum of 119 dollars. That in the forenoon of the same day, he agreed to accept an order from Chiles, in favor of one Chapman, if Chiles would give it, for the balance which might be due him on settlement. Chapman presented a written order from Chiles, in the afternoon of the same day, but the garnishee process had then been served. LyoN, for the plaintiff in error, insisted, the answer could be looked into, for the purpose of showing that the court erred in arriving at the conclusion of indebtedness. [Fortune v. State Bank, 4 Ala. Rep. 385.] If the answer is examined, it will be seen there is no admission of an indebtedness to the plaintiff; so far from this, he alleges that he had promised before the service of the process, to accept an order in favor of Chapman, for the amount due Chiles. This is, in effect, the denial of indebtedness to Chiles, and an admission that he owes Chapman. [1 Stewart, 9; 3 Porter, 105; 6 ib. 365; 1 Ala. Rep. N. S. 38; ib. 421; 2 ib. 177; 4 ib. 386.] R. H. Smith, contra, relied on the case of Gaines v. Bierne, [3 Ala. Rep. N. S. 114,] as settling that the answer cannot be looked into. But, if it can, the decision in Kennedy v. Geddes, [8 Porter, 263,] repeated in the same case in 3 Ala. Rep. N. S.. shows that a naked, verbal promise to accept a bill not in esse, is not binding. [MAJORITY — GOLDTHWAITE, J.] GOLDTHWAITE, J. The conclusion to which we have come on the preliminary question, makes it decisive of the case, and therefore, we shall express no opinion on the question, how far the answer, standing alone, and unexplained by a viva voce examination, is sufficient to sustain the judgment. In Gaines v. Bierne, [3 Ala. Rep. N. S. 114,] we held that the answer of the garnishee, whether viva voce, or in writing, is no part of the record, unless made so by bill of exceptions, or incorporated in the judgment by reciting its substance. It is supposed, however, that the rule then declared, has been modified by the subsequent decision of Fortune v. State Bank, [4 Ala. Rep. N. S. 385,] where an answer in writing was referred to, and the judgment reversed, because not sustained by it.— The judgment entry in that case, recited, that Fortune had answered at a previous term, that he was indebted, and as there was at that term, no entry stating what that answer was, it was of necessity referred to; for otherwise, there was nothing for the action of the court when it gave the judgment. Absolute verity must be accorded to the records of a court, when it states its own action, or its own conclusion, but it by no means follows, that the same credit is due, when it states what was done at a previous term, unless, indeed, the judgment of the court is directed to the ascertainment of the fact, which it undertakes to assert. In such a case, it is probable, the question would be settled by an entry nunc fro tunc. In the present case, there is nothing whatever, besides the circumstance of finding the answer in the transcript sent to' this court, to induce the conclusion that it was unexplained by a viva voce examination; but, conceding the answer is insufficient to sustain the judgment, we would then be forced to refuse credit to the recorded judgment, which asserts that an indebtedness was admitted. This is a result which can only be attained in the manner pointed out by the decision made in Gaines v. Bierne, before cited. Judgment affirmed.