Walker v. Williams & Bouler Const. Co., 1 Div. 32

Citation46 Ala.App. 337,241 So.2d 896
Decision Date10 December 1970
Docket Number1 Div. 32
PartiesJames WALKER v. WILLIAMS & BOULER CONSTRUCTION COMPANY, a Partnership Composed of M. Carl Williams and William Bouler.
CourtAlabama Court of Civil Appeals

Fred F. Smith, Jr., Prichard, for appellant.

Sam W. Pipes, and Augustine Meaher, III, Mobile, for appellees.

THAGARD, Presiding Judge.

The appellee, Williams & Bouler Construction Company, on October 10, 1961, recovered a judgment of $3,690.00 against appellant in the Circuit Court of Mobile County, Alabama. On April 25, 1969, appellee sued out a writ of garnishment against Campbell Construction Engineers, Inc., (hereinafter called Campbell) and also against one Millicent Turner, who are not parties to this appeal.

Millicent Turner answered under oath that she was not indebted to appellant and would not become indebted to him under any contract then existing. The record is silent thereafter as to Millicent Turner, so we presume that she was dismissed as a garnishee.

After service of the writ Campbell answered by writing a letter to the circuit clerk saying that they had an employee named Walker but that the first name was not the same; that Walker denied that he was the man named in the writ; and that they had no funds due James Walker at that time.

Subsequently, appellee filed a motion to require Campbell to appear and answer orally. Campbell appeared, the motion was granted, Campbell answered orally, and the court ordered Campbell to withhold. The order did not say how much or what percentage Campbell was to withhold but evidently it was understood that the amount would be 25 percent.

Thereafter, from time to time, as the 25 percent withholding would accumulate in Campbell's hands, appellant would claim the same exempt to him under the provisions of Title 7, § 629, 1940 Code of Alabama, which is the $1,000.00 personal property exemption statute.

On June 27, 1969, the court allowed appellant an exemption of $500.00 that had been withheld by Campbell. Subsequently, on November 4, 1969, the court allowed appellant an exemption of $1,000.00 that had been withheld by Campbell and ordered Campbell to pay the same to appellant and pay the balance into court. Campbell answered that it had paid the $1,000.00 to appellant and with its answer paid the excess of $250.24 into court. The court ordered Campbell to continue to withhold. Subsequently, on January 27, 1970, the court allowed appellant's claim to an additional exemption of $950.00 that had been withheld by Campbell.

On the same date the court, responsive to a motion of appellee that the court require Campbell to pay into court all money in its hands and that the same then be paid by the clerk to appellee, made an order requiring Campbell to pay into court all sums in its possession, withheld from defendant's wages, in excess of $950.00, and release the $950.00 to appellant.

On January 12, 1970, appellee filed a motion to strike appellant's claim of exemptions and on January 14, 1970, appellee filed a contest of appellant's claim of exemption.

On February 4, 1970, Campbell reported to the court that on that day it had released to appellant withheld funds in the amount of $578.78, being the total withheld since the last directive of the court.

Again, on May 9, 1970, appellant filed an exemption claim to an additional $950.00 that allegedly had been withheld by Campbell since the last distribution. On May 13, 1970, appellee filed a contest to this claim of exemption, asserting that appellant was the plaintiff in a damage suit pending in the Mobile Circuit Court in which the plaintiff was claiming $6,000.00 as damages, and further, that the court had already approved personal property exemption claims far in excess of $1,000.00. On the same day appellee filed a motion to strike appellant's claim of exemptions, assigning as grounds substantially the same as those assigned in the contest.

On May 25, 1970, after hearing, the court entered two judgments, one ordering garnishee Campbell to pay into court all withheld money in its possession and condemning the same and ordering it paid to appellee, and the other granting appellee's motion to strike appellant's last claim to personal exemption. On June 2, 1970, Campbell paid into court $965.52, 'for wages withheld under this garnishment through May 27, 1970.'

Appellant made three assignments of error, each of which charges in effect that the court erred in striking appellant's claim of exemption, thereby disallowing appellant's claim to personal property exemption of $1,000.00.

The first four grounds of appellee's motion to strike seek to cast upon appellant-claimant the burden of alleging and proving certain facts essential to the validity of the claim to the exemption. We do not so read the statute. The statute requires only that the claimant make and file in the office of the probate judge a declaration in writing, subscribed and sworn to by him, describing the property selected and claimed as exempt, with its value. Title 7, § 633, 1940 Code of Alabama.

After the filing of such declaration, the claim of exemption therein asserted shall be taken and considered as prima facie correct; and the filing thereof shall operate as notice of its contents. Title 7, § 635, 1940 Code of Alabama.

In the trial of a contest, the party in whose favor the levy was made shall be deemed the plaintiff, upon whom shall rest the burden of proof. Title 7, § 644, 1940 Code of Alabama.

We hold that the foregoing provisions of the statute are applicable in the hearing of a motion to strike as well as in the trial of a contest and that there was no merit in the first four grounds of appellee's motion to strike.

The fifth and sixth grounds of the motion to strike recite that on the date of the notarial acknowledgment of appellant's claim of exemption appellant was maintaining an action in the Mobile Circuit Court for damages of $6,000.00. The grounds fail to allege whether the action was Ex contractu or Ex delicto or the damages sought liquidated or unliquidated, wherefore we think and hold that this ground fell short of showing that the cause of action had any monetary value.

The seventh ground simply says that for aught that appears defendant (in the court below) is not entitled to the exemption he claims. It is our opinion that the form and substance of appellant's exemption claim complied with the requirements of the statutory laws pertaining to the claiming of personal property exemptions, and that there was no merit in this seventh ground.

The eighth and ninth grounds of the motion to strike appellant's claim to personal property exemption raise the serious questions of (1) whether after getting the benefit of the 75 percent exemption of wages provided by Title 7, § 630, of the 1940 Code of Alabama, appellant could also claim the remaining 25 percent under the one thousand dollar personal property exemption provided...

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  • In re Robinson, Bankruptcy No. 95-71118-TBB-7. Adversary No. 96-00525.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • September 29, 1999
    ...debt." See 1876 Ala.Code § 2823 (1877); Enzor & McNeill v. Hurt, 76 Ala. 595, 597 (1884); see also Walker v. Williams & Bouler Construction Co., 46 Ala.App. 337, 241 So.2d 896, 899 (1970). This twenty-five dollar wage protection remained part of the Alabama Code until 1949. At that time, it......
  • Miller v. Barron, 17199
    • United States
    • Supreme Court of West Virginia
    • October 29, 1986
    ...392 (Bankr.N.D.Ala.1983) (applying Alabama law); Holley v. Crow, 355 So.2d 1123 (Ala.Civ.App.1978); Walker v. Williams & Bouler Construction Co., 46 Ala.App. 337, 241 So.2d 896 (1970); Advance Loan Co. v. Kovach, 79 N.M. 509, 445 P.2d 386 (1968). 3 There is also universal acknowledgment of ......
  • Stewart v. Jones, Civ. A. No. 83-0888-H-B
    • United States
    • U.S. District Court — Southern District of Alabama
    • November 29, 1983
    ...wage exemption contained in Section 6-10-6. See Holley v. Crow, 355 So.2d 1123 (Ala.Civ.App.1978) and Walker v. Williams & Bouler Construction Company, 46 Ala.App. 337 241 So.2d 896 (1970). Both of these cases stand for the proposition that once the 75% wage exemption is claimed, the remain......
  • Renter's Realty v. Smith
    • United States
    • Alabama Court of Civil Appeals
    • January 10, 2020
    ...so there is no question that wages due a defendant in a garnishment suit is personal property." Walker v. Williams & Bouler Constr. Co., 46 Ala. App. 337, 340, 241 So. 2d 896, 899 (Civ. 1970). By any objective standard, "wages, salaries, or other compensation of a resident," § 6-10-6.1(a), ......
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