102 Ala. 373 | Ala. | 1893
The claim of exemptions filed by the defendant, Joseph D. Hubbard, on August 2d, 1892, was insufficient in that it is not made to appear thereby that the debt against which the claim was interposed had been contracted since the ordination and enactment of the laws providing for the exemption intended to be asserted. — Randolph v. Little, 62 Ala. 396. The insufficiency of this claim, however, appears to have been waived by the plaintiff: without objecting to it on this ground, he filed an affidavit of contestation.
The claim of August, 1892, had reference to and covered eighty dollars due and to become due defendant from the garnishee for services rendered in June and July, 1892. Defendant continued in the service of the garnishee until December 31st, 1892; and in March, 1893, the garnishee answered in this and another — McPhillips’ — case against Hubbard that it then owed defendant a certain sum which was greater than the total of the judgments in both cases. On January 19,1893, the de
The other particular in which the claim as interposed in this case must be adjudged to be wholly insufficient is this : The law requires that a claim of exemptions interposed after levy of garnishment must contain, or be accompanied by, a statement setting forth an inventory of all the personal property, choses in action and money belonging to the claimant, “and the value and location thereofand this statement, as well as the claim itself, must “be verified by oath.” — Code, §§ 2525, 2533. It is too manifest to need discussion that the verification required by the statute must be of a presently existing state of facts : it must have reference to the property the defendant has at the moment of filing the claim and making the statement. What property, choses in action or money the defendant owned a year before the claim is filed, it is wholly immaterial to inquire. His rights depend upon the amount of property he owns to-day, at the moment of his solemn statement under oath, not upon what he had last year or last month or yesterday. And the plaintiff is entitled to know affirmatively from his claim and inventory what he has now. Had the claim filed on March 18, in terms, stated that on the 19th
The plaintiff did not waive any of the infirmities of the claim of exemptions to which we have referred. To the contrary on account of them he objected to the filing of the claim and moved to strike it out after it had been filed against his objection, and finally moved for judgment against the defendant and his sureties on the bond given under the act of 1890-91 to dissolve the garnishment, notwithstanding the pending of the alleged claim. Plis objection to the filing was overruled, and each of his motions was denied. In each and all of these rulings the trial court erred. The claim should not have been admitted to the file. Having been put on file, it should have been striken out. And its being on the file was no obstacle to the rendition of a judgment on the answer of the garnishee.
Reversed and remanded.