Burgin v. Ivy Coal & Coke Co.
| Citation | 29 So. 67,127 Ala. 657 |
| Court | Alabama Supreme Court |
| Decision Date | 27 November 1900 |
| Parties | BURGIN v. IVY COAL & COKE CO. |
Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.
Action by J. G. Burgin against the Ivy Coal & Coke Company. From a judgment for defendant, plaintiff appeals. Affirmed.
This was a proceeding instituted by the appellant, J. G. Burgin in a court of a justice of the peace of Jefferson county, to revive a judgment against the appellee, the Ivy Coal & Coke Company, which was alleged to have been rendered against it as garnishee on April 21, 1896, pursuant to a judgment nisi previously taken in default of answer by said garnishee. The garnishment was sued out by Burgin upon a judgment rendered in his favor against one S.W. Elliott. Upon the hearing before the justice of the peace there was judgment rendered reviving said alleged judgment against the garnishee, and from this judgment of revivor the Ivy Coal & Coke Company appealed to the circuit court. In the circuit court the plaintiff filed a declaration setting forth his claim to have the alleged judgment revived, in which he averred that on February 26, 1896, he obtained a judgment of condemnation of $8.15 against the Ivy Coal & Coke Company upon the answer of said company upon said writ of garnishment served upon it and that after the continuance of said court the court did on March 23, 1896, render a judgment nisi against the Ivy Coal & Coke Company for $19.37, and issued notice, to said company to show cause why said judgment for $19.37 should not be made final on April 23, 1896; that on April 23, 1896, the said conditional judgment for $19.37 against the Ivy Coal & Coke Company was made final, but that no executions were issued on said judgment for $19.37 within six months, as required by law, and said judgment has never been satisfied. It was also averred that no execution was issued within the six months for $8.15, alleged to have been rendered on February 26, 1896. To this declaration filed in the circuit court the garnishee interposed several demurrers, which were sustained, but it is unnecessary to set out these demurrers, for the judgment thereon was not sufficient to authorize their being revived on the present appeal. On the trial of the cause in the circuit court, in addition to the facts above stated, the following facts were shown by the transcript of the docket kept by the justice who rendered the judgment, and which transcript was introduced in evidence: On January 10, 1896, garnishment issued against the Ivy Coal & Coke Company, which was executed by the deputy constable. On January 21, 1896, the garnishee answered, admitting the indebtedness to the defendant of $8.15, and on said deed judgment was rendered against the garnishee for said amount. The next entry appearing on the transcript of the justice's docket was as follows: The other entries pertaining to this particular case were as follows: "March 23. Sci. fa. issues April 21, 1896." The other facts of the case are sufficiently stated in the opinion. Upon the hearing of the cause the court rendered judgment in favor of the defendant, to the rendition of which judgment the plaintiff excepted. The judgment entry in reference to the rulings of the court upon the pleadings was as follows: "On this, the 19th day of October, 1899, came the parties by their attorneys, and defendant's demurrer to plaintiff's complaint is by the court heard, considered, and sustained, and plaintiff's demurrer to defendant's pleas is by the court heard, considered, and overruled." The plaintiff appeals, and assigns as error the rulings of the trial court to which exceptions were reserved.
John W. Chamblee, for appellant.
John J. Moore, for appellee.
This was a proceeding begun in the court of a justice of the peace to revive...
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