Randolph v. Little

62 Ala. 396 | Ala. | 1878

STONE, J.

We do not doubt that a claim or demand, sought to be condemned in garnishment to the satisfaction of a judgment, may be the subject of a valid exemption claim, when properly set up by the judgment debtor. But, to be availing, such claim must be interposed before judgment is rendered against the garnishee. Till then, the proceedings are in fieri, and the proper inquiry is presented, whether the garnisheo is indebted to the judgment debtor in such form, as that the debt can be condemned for the payment of plaintiff’s judgment. If there be a debt, and that debt is liable to condemnation, then the proper judgment is against the garnishee, and in favor of the judgment, or attaching creditor. On the other hand, if there be no debt, or, if the debt be not subject to process of garnishment, then the proper judgment is to discharge the garnishee, and thus leave the relations of the garnishee and judgment debtor as they were before the writ of garnishment was served. Garnishment is a statutory action, and can result only in a judgment against the garnishee, or in a judgment discharging him. Contested answers, and collateral issues may arise, but they, at last, resolve themselves into the inquiry of indebtedness vel non from the garnishee to the judgment debtor, and its liability in the given suit.

The plaintiff Little, in June, 1875, made and filed his affidavit for garnishment, in usual form, sotting forth that he recovered judgment against Eosseau and another in 1872, and stating that Randolph was supposed to be indebted to Eosseau. The writ of garnishment was issued and served on Randolph June 28th, 1-875. There is found in the record an affidavit made by Eosseau, bearing date December 28th, 1875, which was filed in court January 24th, 1876, but it is wholly insufficient in averments to support a valid claim of exemption. Wo will treat this case as if that affidavit had not been made or filed. On the 24-th of April, 1877, judgment final was rendered in the garnishment suit against the garnishee, to which no exceptions were reserved. The judgment is that the plaintiff' “ have and recover judgment against the said Eyland Randolph, garnishee, for the sum of three hundred and sixty-eight 1-100 dollars, boing the amount of the original judgment against the defendant in this suit, on the 2d of November, 1872, and the interest thereon — and that the plaintiff have and recover of the said garnishee, all the costs of the original proceedings against the defendant, and in this behalf expended.” This judgment is informal in this: It should have expressed the amount of costs in the original suit, and should have adjudged that sum m numero, as part of the judgment of condemnation. For the sum forced out of Randolph by garnishment, including the costs of the original suit, he will be entitled to a credit, on the debt he owes to Eosseau; and it is not just to the garnishee that the sum be left in uncertainty. The costs of the garnishment suit stand on a different footing. They are not taxed until after judgment rendered, and in paying the one, the garnishee pays the other, and thus obtains a statement of tbe amount, which will enable him to claim his proper credit. Such costs are taxed in the identical suit he is settling, are quasi records, and are part of the judgment rendered. There is still another difference. It is not a matter of course that all the costs in the garnishment suit will be allowed as a credit to the garnishee. If costs in such suits are incurred, or increased by tbe fault of the garnishee, then such increased costs should be borne by the garnishee personally.

The error or informality pointed out above — namely, the failure of the judgment entry to state the amount of the costs in the original suit, and adjudge their payment in numero, was and is but a clerical error, which the court below could and would have corrected at any time. It can be done yet; and for this purpose, we leave this question open for further action in the Circuit Court, if deemed necessary. We would ourselves, if the record furnished the requisite information, here correct the error at the cost of the appellant. — Code of 1876, § 3946 ; 1 Brick. Dig. 82.

After the judgment was rendered in the Circuit Court in favor of Little and against the garnishee, but on the same day, Eosseau, defendant in the original cause, filed his affidavit, claiming that the recovery in the garnishment suit was exempt to him as a bona fide resident of this State. The court thereupon made an order, directing the sheriff or other officer collecting the judgment in the garnishment cause, to pay the 'money when collected, not to Little, in whose favor the judgment was rendered, but to Rosseau on his claim of exemption. In making this order, we suppose the court was controlled by the case of Webb v. Edwards, 46 Ala. 17, from which this case cannot be distinguished. We dissent from and overrule the majority opinion in that case, and agree, in the main, with the views of Peck, C. J. As we have said above, the Circuit Court had jurisdiction to discharge the garnishee, or to render judgment against him. After the judgment was rendered against the garnishee, that court had no authority to make the order that the money, when collected, should be paid to Rosseau. That order was without jurisdiction, is void, and is hereby vacated.

The judgment of Little v. Rosseau was rendered in 1872. It is not beyond the range of conjecture that the debt on which it was rendered was contracted before the constitution of 1868 was put in force. If so, the claim of exemption should have been founded on the statutes in force before that time, and not on the constitution of 1868.— Wilson v. Brown, 58 Ala. 62: Taylor v. Anthony, 55 Ala. 322. The affidavit in this case is insufficient, in that it fails to set forth enough to show by which exemption statute the claimant’s rights are to be measured.

This decision is not a reversal of any judgment, to the prejudice of Little, the appellee. With the exception of the order annulling the judgment of the court that the moneys when collected, be paid to Rosseau, we do not disturb the ruling of the Circuit Court. On one point we reverse and correct the judgment. We do not formally affirm the judgment, because we would thereby merge the judgment of the Circuit Court in ours, and thus preclude any amendment in the court below. — Stephens v. Norris, Stodder & Co., 15 Ala. 79.

Let the appellant pay the costs of this appeal, but no damages are imposed.

Reversed and corrected.