| Ala. | Nov 15, 1890
M. S. Hobart instituted suit before a justice of the peace against W. L. White, for a sum less than one hundred dollars, and on April 6, 1889, L. M. Falk was summoned as a garnishee to answer as to his indebtedness to W. L. White. On May 20, 1889, he answered, denying any indebtedness to White, “ but will be indebted in future in the sum of about one hundred and eleven 50-100 dollars, when he [White] completes my [Falk’s] house according to contract.” There was no further answer by the garnishee, and no contest- of his answer. The record is silent whether Falk’s house was ever completed according to contract, and it is not shovm what it lacks of completion.
After garnishment served, but before answer filed, White interposed a claim to Falk’s indebtedness to him, as exempt to him under the laws of Alabama. This claim was sworn to and filed April 25, 3889, and set forth, among other essentials to such claim, that White “is a -resident citizen of Morgan county, Alabama. ” The claim includes other items, not included in this controversy, the aggregate being less than one thousand dollars.
This claim of exemption was controverted by Mrs. Hobart, through her agent, on April 29, 3 889, he denying that the said White was a resident citizen of Alabama. An issue was thereupon made up before the justice of the peace, to determine whether or not White was a resident of Alabama, and the issue -was submitted to a jury, who, by their verdict, found that White was not a resident citizen of Alabama, and therefore found the issue in favor of the plaintiff, Mrs. Hobart. The justice thereupon adjudged that said property “be held subject to the payment' of the judgment in favor of plaintiff against defendant, for which let execution issue. And the
When the case reached the City Court, and at the first term thereof, the defendant White filed a motion as follows: a Now comes the defendant, and moves the court to order the garnishee in this cause, L. M. Falk, to pay over the money in this cause, detained under the writ of garnishment, to the defendant.” At the same time, the garnishee moved for his discharge on several grounds, among them, that the “ contract [work] not having been completed at that time, no judgment could have been rendered against him in the lower [justice’s] court.” Thereupon the issue, whether or not White was a resident of Alabama, was tried before the City Court, a jury being waived. After hearing the testimony, the following-judgment was rendered by the City Court: “ The court is of opinion that defendant had not, at the time of the service of said garnishment, acquired a residence entitling him to the benefits of the exemption laws of Alabama. The issue is therefore found in favor of the plaintiff, Mary S. Hobart.” From that judgment, the present appeal is prosecuted.
We feel constrained to dismiss this appeal, ex mero ?notic, for the following reasons : The answer of the garnishee., Falk, does not disclose any debt to White, and it does not appear that there ever will be any debt to him, by virtue of the contract brought to view in the answer. Taking that answer for our guide and only source of information, the inquiry whether he ever would become indebted, depended on the further inquiry, would White ever finish the house according- to his contract. If he did not, then the logical interpretation of the answer is, that Falk would not become indebted to him; for aside from that contract, he answered that he owed him nothing. — 1 Brick. Dig. 179, §§ 55, 370, 371. The answer of a garnishee must be taken as true, unless it is contested; and no contest or other issue is formed or tendered, questioning the truth of Falk’s answer. — 1 Brick. Dig. 181, §§388,389. It rested with White whether he would ever finish the house, and no court had power to compel him to do so. We can not know, or indulge the presumption, that it ever will be completed. Till the house was completed Falk owed no debt to White; and until he was shown to owe such debt, there was nothing to condemn to Mrs. Plobart’s claim, or to adjudge to
It is not our intention to assert that White’s claim of exemption was interposed prematurely, or that the denial of its legal validity was premature. The claim of exemption, to .avail anything, must precede condemnation in garnishment. Randolph v. Little, 62 Ala. 396" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/randolph-v-little-6510324?utm_source=webapp" opinion_id="6510324">62 Ala. 396; 1 Brick. Dig. 180, §378. What we do' decide is, that until, by further answer, or as the result of the contest of garnishee’s answer, it was ascertained that, he owed White, there was not shown to be in esse any subject-matter for an issue — for a trial.
We have decisions which hold that, when a garnishee admits an indebtedness to'fall due ata future time, the court may render judgment with stay of execution until the time when, by the terms of the contract, the debt will fall due. To justify such judgment, however, there must be no unascertained fact, no contingency upon the happening of which the question of indebtedness depends. Judgments are the logical sequence of ascertained, existent facts, and can not be rendered to take effect on a contingency which may never happen. The so-called judgment rendered by the justice of the peace against the garnishee was a nullity, and for the same reason the similar judgment of the City Court is a nullity, and will not support the appeal to this court. The trial of White’s claim of residence was premature, for there was no ascertained fact of a debt from Falk which, in the then state of the litigation, could impart to that inquiry legal significance. For the same reason, the trial in the City Court had no real subject-matter, which could authorize the contention. The whole proceeding, as to the condemnation vel non of what the garnishee might owe, which took place subsequent to the filing of his answer to the interposition of exemption-claim, and to the denial of its validity, was premature, and is a nullity.
Failing to contest garnishee’s answer, the only course left to Mrs. Hobart, was to call on the garnishee for further answer, if she supposed the condition on which his indebtedness depended had been performed. If, by further answer, or other authorized proceeding, it be shown that Falk is indebted to White, then the inquiry of the rightfulness of the latter’s claim of exemption will have a subject for forensic contention, and not till then.
Appeal dismissed.