Craft & Go. v. Louisville & Nashville Railroad

93 Ala. 22 | Ala. | 1890

STONE, C. J.

— The answer of the garnishee, filed in the justice’s court August 15, 1S90, admitted an indebtedness to-the defendant, Hubbard, of three hundred and thirty-four dollars, due at that time. This indebtedness accrued under a contract for services, &c. continuous in its nature, which had been some time in operation, and was still in force when the judgment was rendered in the City Court. To this indebtedness, or chose in action, Hubbard interposed a claim of exemption, he making the requisite affidavit of residence, &c., to entitle him to such exemption. We find no substantial imperfection in the claim he interposed, and the justice discharged the garnishee. No contest of the answer was offered in the justice’s court, and the garnishee was rightfully discharged.

The plaintiff in garnishment appealed to the City Court, and gave notice that he would require the garnishee to answer “orally in the presence of the court.” — Code of 1886, § 2974. On November 3, 1890, the garnishee did answer orally in the presence of the court, and in such answer admitted that, between August 15th, 1890, the date of the first answer, and the making of the oral answer, it had become indebted to Hubbard on the said contract for services, in a further sum of one hundred and twenty-five dollars. There was no contest of this answer-, and Hubbard interposed no new claim of exemption to this additional chose in action. In this state of the facts, the City Court discharged the garnishee, and the plaintiff in garnishment excepted.

■ We think the City Court erred in this ruling. The indebtedness which accrued between the dates of the first and second answers was, in no sense, any part of the debt acknowledged in the first answer; and hence it was, in no sense, and could not be, included in the first claim of exemption. It had no existence at that time. The law accords no exemption unless, it is claimed; and if the judgment or attachment debtor has notice of the garnishment, his claim of exemption must be interposed before there is judgment of condemnation. — Code of 1887, § 2533; Randolph v. Little, 62 Ala. 396.

If the record showed sufficient facts, we could and would render judgment on the garnishee’s answer. It fails, however, to give information of the amount of costs incurred in the ■suits, and we know not for what sum to render judgment. We are, therefore, forced to send the cause back to the City Court, reversing all that occurred after the coming in of the ■answer of the garnishee.

Reversed and remanded.