Lee v. City of Fairfield

• Decision Date: 26 January 1933
• Docket Number: 6 Div. 188.
• Citation: 145 So. 669,226 Ala. 70
• Parties: LEE v. CITY OF FAIRFIELD (MINOR, GARNISHEE.
• Court: Alabama Supreme Court

145 So. 669

226 Ala. 70

LEE v. CITY OF FAIRFIELD (MINOR, GARNISHEE.

6 Div. 188.

Supreme Court of Alabama

January 26, 1933

Appeal from Circuit Court, Jefferson County; Richards V. Evans Judge.

Garnishment suit by Callie J. Lee against the City of Fairfield defendant, William Minor, garnishee. From a judgment discharging the garnishee, plaintiff appeals.

Affirmed.

ANDERSON C.J., and BROWN, J., dissenting.

W. A Jacobs, of Birmingham, for appellant.

G. P. Benton, of Fairfield, for appellee.

THOMAS J.

This appeal is from a judgment denying plaintiff's motion for a judgment against the garnishee, and in discharging the latter.

The suit for personal injuries sustained upon a public street of the municipality of Fairfield resulted in judgment for plaintiff. A writ of garnishment in aid of the judgment issued to W. M. Minor, William Minor, and A. O. Chesser; and in answer to said garnishment, "A. O. Chesser, who being duly sworn," etc., and who "is authorized to make this answer *** says *** said garnishee was not indebted," and prays that the garnishment be dismissed with his reasonable costs for making the answer.

The city claimed, as exempt to it from garnishment, levy, and sale under execution or other processes, "money, rent, or indebtedness due by W. M. Minor, and, or, William Minor to the City of Fairfield," as rent due on defendant's "public property" used by it "in its corporate capacity for the purpose of raising revenue"; claimed that the revenue raised was used exclusively for municipal purposes, and that "it was necessary to pay the ordinary municipal expenses of government" of that municipality. There was no contest of the claim of exemptions. Code, § 7889.

There was answer of the garnishee, Minor, to like effect of the claim of exemptions, and demand for oral answer; and there was a motion to dismiss the garnishment, after answers of said garnishees, on the foregoing grounds.

The bill of exceptions presents the evidence on these several claims, answers, and motion. It was to the effect that W. M. Minor was not connected with the city, except that he leased its land called Park Area, located at the intersection of Commerce avenue and Valley road, "as a barbecue stand and not otherwise," under a written contract which may "not be assigned or transferred," nor may the "premises be subleased or underlet without the consent" of the city, and that the tenancy may be terminated by the landlord "without notice or demand," etc.; that the agreed rental was $50 per month; that witness paid "a license to the City of Fairfield for the privilege of conducting that business there. The place is located at 5300 Valley Road, or 5300 Gary Avenue. Valley Road runs into Gary Avenue, and I guess it would be called Garry Avenue there, and it would be the building at 5300 Gary Avenue. That is the street number of the place. That property there has been used for a barbecue business similar to the one I am now operating for about five years. Mr. A. O. [Chester] Chesser had it before I rented it from the city, and paid the city rent for conducting the same kind of business. The garnishment in this case was served on me along in December. My rent is due the 15th of every month. I now owe the City of Fairfield under the lease, $175.00 in rent. That is, I owe them under the lease from the 15th of January, 1932. I haven't paid them any of the rent since this garnishment was served on me." And on this evidence the plaintiff-appellant rested.

The defendant then called the witness Smith, who testified that he was vice president and general manager of the Fairfield Land Company; was familiar with the subdivision and plat of the city, and with the triangular property in question, and had been since November, 1916, and that it was "used for park purposes until the city was incorporated, which was about eleven years ago. This piece of property referred to is in the corporate limits of the City of Fairfield. It was used for park purposes for at least a year after the city was incorporated."

The witness Culpepper, called by the city, testified: "I am City Clerk and City Treasurer of the City of Fairfield Alabama, and have been since October, 1924. I am familiar with this triangular piece of property in question, where the barbecue stand is located. The city put a lease on it about four or five years ago. I knew it was there before that time, but I never thought much about it. When I first came to know it, it was used for a parking place there. A building stood there to get the street cars. The street car backs in there. It is a park and recreation place. The City of Fairfield has not purchased that particular piece of property since I have been with the city. I can't find any record of where they purchased it. My best judgment is it has been used for a barbecue stand about three years. When it was first leased, it wasn't leased for a barbecue stand. To begin with, it had an orange mill on it, and then it stayed closed awhile. During all of that time the city has collected revenue from the time it was put on there. That revenue was put into the general funds to pay operating expenses, policemen and firemen, and any other necessary governmental function, maintain streets. All of this revenue derived from this piece of property has been...