89 Ala. 569 | Ala. | 1889
No waiver of exemptions is involved in this case. The original complaint in the justice’s court counts oñ a note alleged to contain a waiver of exemptions, and the note which is made a part of the bill of exceptions does contain such waiver. But no reference to that fact, nor ascertainment of it, appears in the judgment rendered by the justice against the debtor, Banks, nor in the subsequent judgment rendered on garnishment in the justice’s court against the garnishees, Courie & Co. From this last judgment alone the appeal was taken to the Circuit Court, and a judgment there rendered against the garnishees, from which the present appeal is prosecuted. The alleged waiver not being ascertained and declared in the main suit, our opinion
The defendant was entitled to claim these wages as exempted to him, and, if his claim were sustained, to defeat judgment against the garnishees; but to this end it was essential that he should file his claim, verified by oath, in the court in which the garnishment was pending, by analogy to the claim required by the statute (Code, § 2533); though the claim need not contain an inventory of the defendant’s property, since his exemption of wages, to the extent of twenty-five dollars per month, does not depend upon the amount of property he may own. No such claim is shown in this record.
The answer of the garnishees suggests that the defendant has notified them that he claims the wages in question to be exempt. This can not take the place of the verified claim required by the statute to be filed by the claimant himself. It is true, that the bill of exceptions taken in the Circuit Court sets forth that the case was there “submitted on tbe following agreed state of facts ... 4 That said defendant claimed that said amount due him by the garnishees was exempt to him as wages . . from levy under writ of garnishment.” But, if this recital of the bill of exceptions may be looked to at all, as to a fact which can properly be shown only by the record, it will be construed most strongly against the appellant, and not allowed in any event to contradict the record. The record, according to the certificate of the justice, contained no claim of exemption on the part of Banks, the defendant, except that which appeared from the answer of the garnishees. Moreover, the certificate is an affirmation that no other claim was ever filed in the cause in the justice’s court. It is not pretended that such claim was filed in the Circuit Court, or that the agreement quoted refers to a claim there interposed. Having in mind the'rule of construction adverted to, and protecting the record from falsification by the bill of exceptions, the recital of the latter, to which reference has been had, must be held to mean that the defendant interposed the claim only in the manner shown by the answer of the garnishees. This, we have seen, was not sufficient to raise the issue; and the judgment of the Circuit Court, which ignored the question of exemption, must be affirmed.