
    Bessemer Savings Bank v. Anderson.
    
      Action of Assumpsit.
    
    1. Garnishment; liability of banle for paying out fuñas deposited. Where a bank has been garnished and in its answer to the writ of garnishment it admits having in its possession certain money deposited by defendant in the original suit and subsequently pays out the money to the garnishing creditor, and in payment of the costs of the court before a judgment is rendered, against it in the garnishment proceedings, such uank makes me payment at its peril, and is thereby not discharged of liability for said fund to the original owner thereof.
    2. Same; same. — Where, upon a judgment recovered against the defendant in a suit, a writ of garnishment is sued out and served upon a bank, which answers that it has in its hands a certain sum of money deposited by the defendant in said suit, but before making such answer the bank is notified by a third person that he claims the funds in its hands, it becomes the duty of the garnishee to make known that it had been so notified'of the claim of said third person to the fund or a part of it; and if the bank fails to do this and pays the money after notice of said claim, it does, so at its peril.
    3. Trial and its incidents; failure to marie charge '-given” not reversible error. — -The mere fact that the trial judge does not' mark “Given” on the charge which was given at the request of the plaintiff, does not constitute a reversible error, where the defendant does not direct the court’s attention to the failure and takes no exception at the time; the failure of the judge to so mark the charge being considered, under such circumstances, a mere inadvertence.
    Appeal from tire City Court of Bessemer.
    Tried before the Hon. James Trotter, Special Judge.
    This was an action of assumpsit brought by the appellee, 31. E. Anderson, 'against the Bessemer Savings Bank to recover a balance of a sum of money deposited with the defendant by one R. W. Anderson, which balance was alleged to belong to the plaintiff. The facts of the case are sufficiently stated in the opinion.
    
      Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the general affirmative charge in her behalf. To the giving of this charge the defendant duly excepted.
    There were verdict and judgment for the plaintiff. Thereafter the defendant moved the court to grant it a new trial, upon the grounds that the verdict was contrary to the law amid the evidence, that Hie court erred in giving the general affirmative charge in favor of the plaintiff, and “because the charge given to the jury was not signed by the judge and marked ‘Given/ as required by law.” This motion was overruled, and tire defendant excepted. The defendant appeals, and! assigns as error the several rulings of the trial court to which exceptions were reserved.
    Pinkney Scott, for appellant,
    cited A. L. G. L. Ins. Go. v. Mobile M. Ins.' Go., 81 Ala. 329; Tabler v. Sheffield L., etc., Go., 87 Ala. 305; MoTeers v. Perkins, 106 Ala. 411; Maros Bros. v. Lienkauf, 93 Ala. 453.
    Ward & Drennen, contra,.
    Ordinarily the bank is required to pay the checks drawn against a deposit! by the person mailing it, until the fund is'exhausted; but if the bank has notice that the money deposited really belongs to another person, then the payment of the checks of the depositor, after1 such notice, will be at the peril of the bank. — Frasier v. Bank, 8 Watts & Sergeants, 18; Harrisburg Bank v. Tyler, 3 Watts & Sergeants, 373; Jackson v. Bank of the U. S., 10 Barr’s Rep. 61; Bank of Northern Liberties v. Jones, 6 Wright 541; Stair v. York Nat. Bam-k, 5 P. F. Smith’s Rep. 368 •,Arnold, v. Maemigie Savings Bank, 21 P. F. Smith’s Reps. 290; Armour-Gudahy Packing Go. v. First Nat. Bank of Greenville, 11 So. Rep. (Miss.), 28; First Nat. Bank and Banking, § § 341, 565, 590 et seq.
    
    With the notice given it, it became the duty of the appellant to suggest! the appellee as claimant to the fund, at the time of mailing its answer in the justice court of S. J. Tillman. A failure to do this was at its peril, and precluded appellee from asserting her claim to the money in said justice court). — Sailer v. Ins. Go., 62 Ala. 22; Moore v. Jones, 13 Ala. 291; Fowler v. Williamson, 52 Ala. 16; Ex parte Opdyhe, 62 Ala. 68; Donald v. ■Nelson, 95 Ala. Ill; Woodlcmn v. Parvis, 108 Ala. 511.
   HARALSON, J.

R. W. Anderson was sued in the justice’s court March 26, 1900, by J. H. Johnson, and judgment was rendered against him therein March 31, 1900, in favor of the plaintiff, for $57.51. To collect the debt., the. plaintiff garnished the Bessemer Savings Bank. The garnishee, on April 5, 1900, appeared on summons, and answered an indebtedness of $410. It did not set np in its answer that the plaintiff in this suit claimed said fund, The proof, on the paid of plaintiff showed, Avithout dispute, that) the garnishee Avas ¡notified by the defendant, R. W. Anderson, and by the plaintiff, before it made ansAver to the garnishment Avrit, that $370 of 'the fund garnished belonged to the plaintiff. The garnishee, according to> plaintiff’s evidence, afterwards paid $310 to the plaintiff, leaving in its hands $60, which, plaintiff claimed, and which this suit is brought to 1-eeoAur. The proof also showed, without conflict, that the money imi the hands of the bank had been deposited therein by R. W. Anderson to his individual credit, but he and the plaintiff, his Avife, both testified, and there is no proof to the contrary, that the money belonged to the plaintiff; and the proof also shows, Avithout dispute, that when said R. W. Anderson made, the deposits, he informed the cashier that the funds belonged to the plaintiff, except $40 of it.

It Avas also shown that proceedings in bankruptcy had been instituted in the United States bankrupt court against said R. W. Anderson, hut that tire same had been dismissed by the order of that court, on the 7th July, 1900, at said Anderson’s cost. The proof also tends to show that these costs, amounting to $40.15, were paid to the clerk of that court by the garnishee, on the 12th July, 1900, but it is not shown that the same Avere paid by any judgment against the garnishee; nor by the order of said R. W. Anderson. It further appears that the garnishee 'paid to the justice of the peace in said garnishment proceedings against it, on the 10 July, 1900, the sum of $59.85, these two amounts making $410, the sum admitted by garnishee to be in its hands belonging to said defendant R. TV. Anderson, but it appears that no judgment, in said justice’s court had been rendered against garnishee for that, or any other sum, mor did it appear that, the same was paid with the knowledge, or by the direction of the plaintiff, but the same ivas a voluntary payment so far as is made to appear

The plaintiff’s evidence tended! to show, that the $310 paid by the garnishee, after garnishment, out -of the deposits made by the defendant, was paid to' plaintiff. The president of the garnished bank testified, that it was'paid to .the husband of the plaintiff. But this is immaterial. There wa,s left in the hands of the garnishee, without any question, the sum of $60, claimed by the plaintiff and here sued for. The garnishee admitted that it had $410 in its hands deposited there by defendant, and seeks to defend this suit on the grounds, that the money in its hands was not the. money of plaintiff, and she has no right toi sue for1 and collect the same, in any event; and that, the money paid to the justice of the peace in said garnishment proceeding, and the costs paid to the clerk of the United States court., in said bankruptcy proceeding, constitute .a discharge of liability for said fund. But this defense cannot avail it. To protect it, the fund must have been paid on a judgment in. garnishment rendered against it, or, as against the garnishor, that it was paid with her consent. — Gunn v. Howell, 35 Ala. 144; Ross v. Pitts, 39 Ala. 606; 8 Am. & Eng. Ency. Law 1197.

It is true, that when said* R. TV. Anderson deposited the money in bank to' his individual credit, that fact, without, more, showed, prima, facie, that it belonged to him, but not conclusively so. If it really belongs to plaintiff, the fact that her husband, to whom she intrusted it, to' be kept for her, deposited it in bank to. his own credit, did ¡mot change her title to it. That it did belong to her, he and she both swear, and he, that he so notified thei bank at the time he made the deposit, and there is no evidence, to- the contrary. It is also undisputed, that after the writ of garnishment was served, and. before the gairnish.ee answered, garnishee was notified that plaintiff claimed $370 of the fund in its hanid. Iti was the duty of the garnishee in making answer, to make known that it had been notified that plaintiff claimed the fund or a part of it in his hands, and if it failed and paid after notice of such claim, it did so at its peril. Such failure precluded- plaintiff from asserting her claim to the fund in the justice’s, court. — Lewin v. The Insurance Co., 62 Ala. 221; Donald v. Nelson, 95 Ala. 111; Woodlawn v. Purvis, 108 Ala. 513.

The mere fact that the trial judge did* not mark “Given” on . a charge which was requested by plaintiff and which was given, is not reversible error. The defendant did not direct the attention of the court to the failure, and took no exception! at the time. For aught appearing, the failure of tire judge to so mark the charge, was a mere inadvertence. — Barnewall v. Murrell, 108 Ala. 366.

Affirmed.  