112 Ala. 311 | Ala. | 1895
It was upon the defendant, Elkan, to affirmatively show by his claim of exemptions that the debt of the garnishee to him was exempt from subjection to plaintiff’s judgment, so that upon a mere denial of the claim — an averment that the claim is invalid entirely — by the plaintiffs all material issues would be presented. And a claim which may or may -not be good accordingly as some issue not presented by it is determined one way or the other — a claim which is good, abstractly speaking, against a debt contracted at one time but which is not good against a debt contracted at another time, and which does not show whether the debt against which it asserted was contracted at the one time or the other — does not show on its face that the claimant is entitled to his exemptions, presents nothing upon which plaintiff is bound to take issue and is insufficient. The affidavit of claim filed here shows that five hundred and fifty dollars of the ainount due from the garnishee was exempted to defendant only upon the assumption that plaintiffs’ debt was contracted subsequently to the adoption of the constitution of 1868. This sum was sufficient to satify plaintiffs’ judgment more than twice over. And neither the claim affidavit nor any other part of the record in the court below shows that plaintiffs’ debt was of that class. Now, of course it is highly probable that a debt which was reduced to judgment in 1893 was contracted after 1868. But still it is probable only. It is not certain, for a debt contracted prior to that time might have been so renewed as not even to be barred by the statute of limitations; and if it were open to the plea of the statute of limitations, there might-yet still be a perfectly valid judgment
If it be conceded that the claim filed was sufficient as to two hundred and seventy-five dollars of the fund, on the theory that the exemption allowed by section 2512 of the Code of 1886, under which the claim to this extent is presented, is assertable against all debts whenever created, still there was left much more than enough of the debt due from the garnishee to satisfy plaintiffs’ judgment, so that more of the fund than was sufficiently claimed by the defendant is untouched and unaffected by the judgment against the garnishee. And the fact that a part of the money was properly claimed did not put it on the plaintiff to contest an insufficient claim as to the balance, nor did the striking out of the claim as a whole at all prejudice the defendant or, in legal contemplation as we shall see, the garnishee, since the former got all he was entitled to out of the fund on account of the claim so far as properly presented, and the latter, prima facie at least, had no interest in the money as between the plaintiff and the defendant.
And this brings us naturally to the question of the garnishee’s right to impeach in any way the action of the court in striking out defendant’s alleged claim of exemptions on plaintiffs’ motion. And assuming in this connection that apart from the question of exemption ml non, plaintiffs were entitled to judgment against the garnishee on his answer, the matter stands thus : The garnishee while the writ was upon him was indebted to the defendant. This debt he chose to pay to the defendant before answer. He then had no shadow of defense against the writ, nor of right to interpose any objection to the rendition thereon of a judgment against him. The defendant, it may be granted, had a right to
We have assumed that the plaintiff, apart from the question of defendant’s exemptions, was entitled to judgment on the garnishee’s answer. Having shown, or attempted to show, that so far as the garnishee is concerned, on this appeal the inquiry as to defendant’s exemptions is out of the case, we now recur to the question whether the answer of the garnishee justified a judgment against him. And little need "be said in this connection. We do not hesitate to construe the answer to mean simply this : that defendant was employed by the garnishee at a salary of seventy-five dollars per month, payable at the end of each month, and that the garnishee allowed the defendant to take money and goods out of the business during 'the course of each month in payment of his salary; or in other words, the garnishee, Avhile the writ was upon him paid the defendant’s salary before it became due, but as and after it had accrued. The moment the salary or any part of
The same judgment will be entered in the case of M. Ely, Garnishee, v. Morris Flinn, identical with the case considered above and submitted with it.
Affirmed.