Francis-Chenoweth Hardware Co. v. Bailey

• Decision Date: 14 November 1894
• Citation: 104 Ala. 566,18 So. 10
• Parties: FRANCIS-CHENOWETH HARDWARE CO. v. BAILEY ET AL. [1]
• Court: Alabama Supreme Court

18 So. 10

104 Ala. 566

FRANCIS-CHENOWETH HARDWARE CO. v. BAILEY ET AL. ^[1]

Supreme Court of Alabama

November 14, 1894

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Garnishee proceedings by Bailey & McConnell against the Francis-Chenoweth Hardware Company. From a judgment against garnishee, it appeals. Reversed.

Mountjoy & Tomlinson, for appellant.

W. T Hill, for appellees.

BRICKELL C.J.

This case originated before a justice of the peace of the county of Jefferson, and was carried into the city court by appeal. The appellees commenced suit before the justice against Isaac Lewis and Alice Lewis, founded on a promissory note which, as alleged in the complaint filed before the justice, contained a waiver of exemptions of personal property. In aid of the suit, a garnishment was issued, directed to the appellant requiring it to appear and answer whether it was indebted to the defendant Isaac Lewis, or had effects of the said defendant in its possession or under its control. The garnishment was issued on an affidavit of the appellees' attorney, conforming substantially to the requirements of the statute, having the affirmative statement that the defendant had in writing waived his exemptions. The appellees having thereafter, on the 27th day of September, 1892, recovered judgment against the defendants, on the 14th October, 1892 sued out another writ of garnishment, directed to the appellant, requiring it to answer whether it was indebted to the defendant Isaac Lewis, or had effects of the said defendant in its possession or under its control. The affidavit upon which the garnishment was issued did not negative the fact that the demand sought to be subjected was owing for the personal services of the defendant in the judgment, or affirm the fact that the demand in amount exceeded $25, nor that there was a waiver of exemptions. On this garnishment the justice rendered judgment against the appellant, from which the appeal to the city court was taken. In the city court the appellant moved to quash the garnishment, because it was not supported by an affidavit "that the demand sought to be subjected by garnishment is not owing for or on account of personal services rendered by the defendant as a laborer or employé, or that the amount thereof exceeded the sum of $25, or that the defendant had in writing waived his right to claim the sum as exempt, as required by act of the legislature of February 18, 1891 (Acts 1890-91, p. 1403)." The motion was sustained, and the garnishment quashed. Thereupon the appellees moved that the appellant be required to answer the first writ of garnishment issued by the justice, and upon the requirement of the court the appellant made answer, and after other proceedings not necessary to notice the court rendered judgment against the appellant, from which this appeal is prosecuted. The requirement of the appellant to make answer to the garnishment, and the rendition of the judgment against it, are the material assignments of error.

The statute (Code, § 3398), confers on a party supposing himself aggrieved by the judgment of a justice of the peace the right to appeal to the circuit court, or court of like jurisdiction, of the county in which the judgment was rendered. The appeal having been taken, the case is tried de novo, without regard to any defect in the summons or other process, or proceedings before the justice. Code, § 3405. When, as in the present case, the appeal...