Francis-Chenoweth Hardware Co. v. Bailey

104 Ala. 566 | Ala. | 1894

BRICKLELL, C. J.

This case originated before a justice of the peace of the county of Jefferson, and was carried into the city court by appeal. The appellees commenced suit before the justice against Isaac Lewis and Alice Lewis, founded on a promissory note, which, as alleged in the complaint filed before the justice, contained a waiver of exemptions of personal property. In aid of the suit, a garnishment was issued directed to the appellant, requiring it to appear and answer whether it was indebted to the defendant Isaac Lewis, or had effects of the said defendant in its possession or under its control. The garnishment was issued on an affidavit of the appellees’ attorney, conforming substantially to the requirements of the statute, having the affirmative statement that the defendant had in writing waived his exemptions. The appellees having thereafter, on the 27th day of September, 1892, recovered judgment against the defendants, on the 14th October, 1892, sued out'another writ of garnishment directed to the appellant requiring it to answer whether it was indebted to the defendant Isaac Lewis, or had effects of the said defendant in its possession or under its control. The affidavit upon which the garnishment was issued did not negative the fact that the demand sought to be subjected was owing for the personal services of the defendant in the judgment, or affirm the fact that the demand in amount exceeded twenty-five dollars, nor that there was a waiver of exemptions. On this garnishment the justice rendered judgment against the appellant, from which the appeal to tbe city court was taken.

In the city court, the appellants moved to quash the garnishment, because it was not supported by an affidavit, ‘ ‘that the demand sought to be subjected by garnishment is not owing for or on account of personal services rendered by the defendant as a laborer or employé, or that the amount thereof exceeded the sum of twenty-five dollars, or that the defendant had in writing waived his right to claim the sum as exempt, as required by act of the legislature of February 18th, 1891. — Acts 1890-91, page 1403. ’ ’ The motion was sustained and the garnishment quashed. Thereupon the appellees moved that the appellant be required to answer the first writ of garnishment issued by the justice, and upon the requirement of the court the appellant made answer, and after other proceedings not necessary to notice, the coui’t rendered judgment against the appellant, from which this appeal is prosecuted. The requirement of the appellant to make answer to the garnishment, and the rendition of the judgment against it, are the material assignments of error.

The statute, (Code, § 3398)/confers on a party supposing himself aggrieved by the judgment of a justice of the peace, the right to appeal to the circuit court, or court of like jurisdiction, of the county in which the judgment was x’endered. The appeal having been taken, the case is tried de novo, without regard to any defect in the summons, or .other process, or proceedings before the justice. — Code, § 3405. When, as in the present case, the appeal is taken by a party against whom a judgment for the paymeut of money had been rendered, such party must give bond with sufficient sureties in double the amount of the judgment including costs, with condition to pay such judgment as may be rendered by the court-to which the cause is removed. — Code, § 3400. It is apparent that to support the jurisdiction of the court to which the appeal is taken, there must be, primarily, the decision, sentence or judgment of the justice. — Little v. Fitts, 33 Ala. 343. And the judgment must be final, decisive of the particular case ; such a judgment as would support a writ of error or appeal from a court of record. Wyatt v. Judge, 7 Port. 37.

The only judgment which the justice of the peace had rendered, and that from which the appeal was taken, was the judgment rendered on the 22d February, 1893. The judgment was founded on the garnishment issued on the 14th October, 1892, after the rendition of judgment against the defendants in the principal suit. A garnishment whether it issue in aid of a pending suit, or to obtain satisfaction of a judgment, is essentially a suit, a proceeding by a creditor to reach and subject the rights or credits of his debtor, which are within the scope of the remedy as declared by statute. — Code, § 2994. While it may be consequential to the pending spit, or to the judgment, anew party is introduced, who may become the adversary of both parties plaintiff and defendant, in the pending suit, or judgment, with whom new and distinct issues are to be formed, and against whom a separate, distinct, independent judgment is sought. There was no connection between the garnishment issued during the pendency of the principal suit, and the garnishment issued subsequent to the judgment. The one has no relation to the other. Each was the institution of a separate; distinct suit, commenced under differing limitations and conditions; and each was the subject of a separate, distinct judgment by the justice, which could have been carried by appeal to the city court, or other court having jurisdiction.

When the city court quashed the garnishment on which the judgment of the justice was rendered, from which the appeal was taken, because it was void, and the judgment was consequently void, the jurisdiction it could rightfully exercise, except to render a judgment for costs, was exhausted. On the other garnishment, issued in aid of the principal suit, the justice had not rendered judgment, and the essential element of the jurisdiction of the city court, the decision, sentence, or judgment of the justice, was wanting. If the garnishment on which the judgment was rendered by the justice, had not been void, and the judgment of consequence void, the garnishee could as matter of right have answered anew, or a further answer could have been required of him. This follows as a consequence from the statutory requirement that on appeal the trial shall be do novo. It is the garnishment on which the judgment was rendered, from which the- appeal is taken, the garnishee may answer anew, or to which the court may require him to answer further, and not any other garnishment; certainly not another garnishment on which no judgment was rendered, and which is not the subject of the appeal.

The city court erred in requiring the appellant to answer the garnishment on which the justice had not rendered judgment, and in the rendition of the judgment against the appellant. The judgment must be reversed, and a judgment will be rendered here that the defendants go hence, and recover of the appellees the costs of appeal, and the costs of the city court.

Reversed and rendered.