Jasper Land Co. v. Riddlesperger

• Decision Date: 22 May 1934
• Docket Number: 6 Div. 573.
• Citation: 26 Ala.App. 191,157 So. 231
• Parties: JASPER LAND CO. v. RIDDLESPERGER.
• Court: Alabama Court of Appeals

157 So. 231

26 Ala.App. 191

JASPER LAND CO. v. RIDDLESPERGER.

6 Div. 573.

Court of Appeals of Alabama

May 22, 1934

Rehearing Denied June 12, 1934.

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Garnishment suit by Mrs. Vannah Riddlesperger against A. S. Preston defendant; Jasper Land Company, garnishee. From a judgment for plaintiff, the garnishee appeals.

Affirmed.

Certiorari denied by Supreme Court in Jasper Land Co. v Riddlesperger (6 Div. 613) 157 So. 233.

See also, 140 So. 624, 25 Ala. App. 45.

Coleman D. Shepherd, of Jasper, for appellant.

L. D. Gray and J. B. Powell, both of Jasper for appellee.

BRICKEN Presiding Judge.

The record discloses that appellee recovered judgment against A. S. Preston, defendant in the court below, for $550, on September 22, 1928.

On January 31, 1931, garnishment was issued on the judgment against this appellant, who answered "not indebted." This answer was contested, and upon the trial of the contest before the court without a jury, judgment was rendered in favor of this appellee against this appellant for the full amount of the plaintiff's judgment, and the garnishee appealed. The action of the court in rendering this judgment is made the basis of the assignment of errors.

The trial judge in the rendition of the judgment, among other things, states:

"The evidence taken on the former trial was offered and submitted, and other witnesses having been first duly sworn gave their testimony, and other evidence was offered and after hearing and considering the same it is the opinion of the court that on January 31, 1931, the defendant A. S. Preston was an employee of the garnishee Jasper Land Company, a corporation as its Secretary and Treasurer, under an election as such by action of the Board of Directors of the garnishee had on April 17th, 1929, that thereafter said defendant continued to serve as such Secretary and Treasurer of said garnishee under said election for the remainder of the year 1929, during which time the garnishee paid the defendant Preston a monthly salary of $250.00 per month, making a total of $2,750.00 paid the defendant A. S. Preston by the garnishee Jasper Land Company during said year of 1929, said payment covering all the months of said calendar year of 1929, except the month of January of that year; that under said election as Secretary and Treasurer, A. S. Preston became entitled to his monthly salaries for the services performed by him and that the writ of garnishment issued and served upon the garnishee on January 31st, 1931, created a lien upon so much of the salary due to be paid the defendant A. S. Preston from and after January 31st, 1931, until the indebtedness due by said defendant to the plaintiff was paid.

"It is further ordered that at the time of the service of said writ of garnishment on the garnishee the defendant A. S. Preston was indebted to plaintiff by said judgment in the sum of $550.00 plus eight per cent. interest thereon from September 22nd, 1928, to January 31st, 1931, which interest amounted to $102.00 making a total then due the plaintiff by defendant of $652.00 and said sum of $652.00 so due or payable by the Jasper Land Company to the defendant A. S. Preston for services performed by said Preston in the months of February, March and April, 1931, is condemned to the payment of said $652.00 so due plaintiff by said defendant.

"It is further ordered and adjudged by the court that the garnishee Jasper Land Company, a corporation, pay to the plaintiff, Mrs. Vannah Riddlesperger, the said above-mentioned sum of $652.00, with the costs incurred in this cause on this particular trial of said contest by the plaintiff of the said answer of said garnishee.

"Rendered this 2nd day of February, 1933."

Appellant admits that Preston, the judgment debtor, has been for many years continuously in its employ, and has received appreciable salary for his services; but contends that at the time of the service of the writ of garnishment Preston was working for it under a certain contract entered into by and between L. B. Musgrove, deceased, its former president, and Preston, on August 22, 1927. Said contract appears in the record and is as follows:

"State of Alabama, County of Walker.

"It is hereby agreed between the Jasper Land Company and A. S. Preston, as follows:

"That said Preston is hereby employed to work for Jasper Land Company, in keeping its books, looking after its properties, and doing all other work called upon by the Land Company, in addition to acting as Secretary & Treasurer of the Company, at a salary of Two Hundred eighty-three and one-third dollars per month, to be paid in advance on the first day of each month.

"It is agreed, however, that any balance due to Jasper Land Company by A. S. Preston, shall be deducted from any payments to be due hereafter under this contract, so that the Land Company will be paid in full any balance that may be due said Land Company before any money shall be paid said Preston.

"And it is further agreed that the employment of said Preston under this contract shall be subject to termination by either party at any time.

"Executed in duplicate, this the 22nd day of August, 1927.

"Jasper Land Company,

"By L. B. Musgrove, President.

"A. S. Preston."

Appellant predicates its nonliability upon the foregoing contract alone, and in effect concedes that but for this contract the plaintiff would be entitled to her judgment in this proceeding. In this connection it is insisted that at no time during the pertinent period, that is to say, from the date of the service of garnishment to the time of the trial of this...