Decatur Mercantile Co. v. Deford, 93 Ala. 347

Decatur Mercantile Co. v. Deford

93 Ala. 347 | Ala. | 1890

CLOPTON, J.

— Section 2533 of the Code provides : “When money, or choses in action, or personal property, are garnished, and the defendant claims the same, or any part thereof, as exempted, he shall file his claim thereto in writing, verified by oath, in the court in which said proceedings are pending, accompanied by a statement setting forth the personal property, choses in action and money, and the location and value thereof, as required in the statement to be filed under the provisions of section 2525.”

Appellee having filed his claim to the money garnished as exempt, appellant moved for judgment by default against the claimant and the garnishees, basing the motion on the specified grounds, that the claim is too uncertain and indefinite, and is not accompanied by a sufficient inventory. The claim, which is in writing and verified by oath, makes known and declares, that defendant has selected, and claims as exempted, “wages due him from Long & Jervies for work and labor done by affiant, and which wages have been garnished at the suit of Decatur Mercantile Company, before O. H. Stephens, mayor and ex officio justice of the peace, against this affiant, $35.50.” The claim was filed in the justice’s court in which the suit was commenced and the garnishment proceedings were pending, having been removed to the City Court by certiorari. It sets forth the facts entitling defendant to the exemption, and particularizes the money garnished as selected and claimed, stating the amount due as wages for the work and labor. Though informally prepared, it presents the facts so that a material issue can be taken thereon, if contested; this is requisite certainty.

In order to the sufficient interposition of a claim undpr section 2533, it must be accompanied by a statement of defendant’s personal property, money, and choses in action, such as required by section 2526. If not accompanied by an inventory, the plaintiff may move for judgment against the garnishee, as upon default of the claimant of exemptions. — Tonsmere v. Buckland, 88 Ala. 312; s. c., 6 So. Rep. 904. Immediately following, and as a continuation of the claim, is a statement, verified by defendant as a complete inventory of all the property owned by him. The first objection urged to-the sufficiency of the statement is, it does not include the money claimed as exempted. The purpose of the requirement is to prevent the defendant, while claiming the money garnished as exempt, secreting other personal property, money or choses in action subject to his debts, and which may be reached by appropriate legal process. That the money claimed as exempted is a part of the claimant’s property, is made known to-*350plaintiff by the claim itself. Its repetition in the statement seems to be unnecessary. The statute makes the statement an essential part of the claim. There certainly can be no objection to making it on the same paper as a part of the claim, both verified by one and the same oath. This is a substantial compliance with the statute. The objection, that the claim and statement are not made separately, is rather technical. Also, when an inventory has been filed by the defendant, though it may not be complete, the plaintiff can not move for judgment against the garnishees as upon default of the •claimant of exemption. If incomplete, plaintiff should have tendered an issue, that defendant has other personal property not embraced in the inventory, under section 2531. No such issue having been tendered, and no offer to contest the claim, the court did not err in discharging the garnishees.

Affirmed.