Ely v. Blacker
| Decision Date | 23 June 1896 |
| Citation | 20 So. 570,112 Ala. 311 |
| Parties | ELY v. BLACKER ET AL. SAME v. FLYNN. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Marengo county; John R. Tyson, Judge.
Action by Blacker, Gerstle & Co. against Sol Elkan, and a separate action by Morris Flynn against the same defendant. In both actions, M. Ely was summoned as garnishee, and from judgments against him he appeals. Affirmed.
These two cases were identically the same, with the exception of the names of the plaintiffs, and the amounts of the judgment of each plaintiff, and involved the same questions of law and were therefore submitted together on the present appeal. What is said in the following statement of facts applies to the facts in each of the cases: Plaintiffs recovered a judgment in the circuit court of Marengo county against one Sol Elkan, and sued out a writ of garnishment thereon, which was served upon M. Ely on July 8, 1893. The garnishee filed a written answer, which was declined by the plaintiffs, and upon the plaintiffs' motion the court made an order requiring the garnishee to answer orally. The cause was regularly continued until the fall term of the circuit court in 1895, when the garnishee answered orally on September 30 1895, the substance of which answer is stated in the opinion. On the same day, to wit, September 30, 1895, the defendant Sol Elkan, filed a claim of exemption, in which he stated that he "selected and claimed as exempted to him, under the constitution and laws of the state of Alabama, the following described personal property: The sum of $25 per month due him as his salary as a clerk in the store of M. Ely from the 1st day of July, 1893, to the 1st day of September 1894,-11 months; the sum of $50 per month from the 1st day of July, 1893, to the 1st day of September, 1894,-11 months,-$550." The other articles claimed were household furniture. In this claim of exemption the "affiant further states that the above is a complete inventory of all his personal property, except the wearing apparel, portraits, pictures, and books specifically exempted from levy and sale, with the value of the same, and that it is located at Jefferson, Marengo county, Alabama; that he has no money on hand; and that there are no debts and choses in action belonging to him, or in which he is beneficially interested, except some old, open accounts, which are barred by the statute of limitations of 3 years, and which are considered valueless." This claim was duly sworn to before the clerk of the circuit court. The plaintiffs contested this claim of exemption upon several grounds, and upon the plaintiffs' motion it was stricken from the file because it was insufficient. The plaintiffs then made a motion for judgment against the garnishee upon his answer. The court granted this motion, and rendered judgment against the garnishee. The present appeal is prosecuted by the garnishee, who assigns as error the striking of the defendant's claim of exemption from the file, and the rendition of judgment against the garnishee.
Wm. Cunninghame, for appellant.
Taylor & Elmore, for appellees.
It was upon the defendant, Elkan, to affirmatively show by his claim of exemptions that the debt of the garnishee to him was exempt from subjection to plaintiffs' judgment, so that upon a mere denial of the claim-an averment that the claim is invalid entirely-by the plaintiffs, all material issues would be presented. And a claim which may or may not be good, accordingly as some issue not presented by it is determined one way or the other,-a claim which is good, abstractly speaking, against a debt contracted at one time, but which is not good against a debt contracted at another time, and which does not show whether the debt against which it is asserted was contracted at the one time or the other,-does not show on its face that the claimant is entitled to his exemptions, presents nothing upon which plaintiff is bound to take issue, and is insufficient. The affidavit of claim filed here shows that $550 of the amount due from the garnishee was exempted to defendant only upon the assumption that plaintiffs' debt was contracted subsequently to the adoption of the constitution of 1868. This sum was sufficient to satisfy plaintiffs' judgment more than twice over. And neither the claim affidavit, nor any other part of the record in the court below, shows that plaintiffs' debt was of that class. Now, of course, it is highly probable that a debt which was reduced to judgment in 1893 was contracted after 1868. But still it is probable only,-it is not certain; for a debt contracted prior to that time might have been so renewed as not even to be barred by the statute of limitations, and, if it were open to the plea of the statute of limitations, there might still be a perfectly valid judgment for it, the plea not having been interposed. And so long as the language of the affidavit setting forth the claim of exemptions raises only a probability, of however high a nature, that the thing claimed is exempt from being subjected to the particular debt, it cannot be said that the right is affirmatively shown; and the plaintiff is not called upon the test the truth of the affidavit when all it sets forth may be confessed to be true without confessing the right the defendant is attempting to assert, but he may move the court to strike it out as insufficient. Randolph v. Little, 62 Ala. 396; Young v. Hubbard, 102 Ala. 373, 14 So. 569....
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Alexander v. Birmingham Trust & Savings Co.
...by any arrangement or transaction between the defendant and the garnishee, or by any act of either." And again, in Ely v. Blacker, 112 Ala. 311, 20 So. 570: "In legal contemplation, the garnishee indifferent between the plaintiff in judgment and the defendant. It is nothing to him whether t......
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Bambrick v. Bambrick Brothers Construction Co.
...effect of the service of the notice of garnishment by making payments to the defendant before they were due, after such service. [Ely v. Blacker, 20 So. 570; Goodwin Clayton, 49 N.E. 173.] But it is the firmly established rule that a creditor will be denied the right to attach by garnishmen......
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Bambrick v. Bambrick Bros. Const. Co.
...effect of the service of the notice of garnishment by making payments to the defendant before they were due, after such service. Ely v. Blacker, 112 Ala. 311, 20 South. 570; Goodwin v. Claytor, 137 N. C. 224, 49 S. E. 173, 67 L. R. A. 209, 107 Am. St. Rep. 479. But it is the firmly establis......
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