Olson v. Field Enterprises Educational Corp., 6 Div. 4

• Decision Date: 11 February 1970
• Docket Number: 6 Div. 4
• Citation: 231 So.2d 763,45 Ala.App. 438
• Parties: Mildred OLSON, d/b/a The Little Gallery v. FIELD ENTERPRISES EDUCATIONAL CORPORATION, a Corporation.
• Court: Alabama Court of Civil Appeals

Page 763

231 So.2d 763

45 Ala.App. 438

Mildred OLSON, d/b/a The Little Gallery v. FIELD ENTERPRISES EDUCATIONAL CORPORATION, a Corporation.

6 Div. 4.

Court of Civil Appeals of Alabama.

Feb. 11, 1970.

Sam M. Phelps and John A. Owens, Tuscaloosa, for appellant.

John P. Buck, Tuscaloosa, for appellee.

THAGARD, Presiding Judge.

The appellee, Field Enterprises Educational Corporation, after having obtained a default judgment in the County Court of Tuscaloosa County against one Edith Thomas on February 17, 1967, sued out a writ of garnishment in said court on April 3, 1967 directed to the appellant in this cause.

The writ of garnishment, which was served upon appellant on April 4, 1967 required her 'to appear within 10 days after the service of this writ, * * *' and answer under oath according to the terms of the garnishment. The appellant endorsed on the writ, but not under oath, in her own handwriting,

'I do not choose to have Edith Thomas's check garnished.

(Signed) Mrs. Mildred P. Olson',

and filed the same in the court of its origin on April 7, 1967.

On April 17, 1967, thirteen days after service of the original writ, a conditional judgment was rendered against the appellant. Notice of the judgment was served upon the appellant on April 19, 1967. It advised her that the judgment would be made final unless she 'appear at the present term of this Court, within 10 days after service of the rendition of this judgment, and show cause why this judgment should not be made absolute * * *'

Appellant failed to answer within 10 days, and on May 1, 1967 the court made the judgment final and absolute. Three days later the garnishee-appellant filed an answer under oath, which the court later said was a sufficient answer if it had been seasonably filed.

More than six months later the clerk of the court issued an execution on the judgment and filed a certificate of the same in the office of the Probate Judge.

Appellant, on November 14, 1967, filed in the Tuscaloosa County Court a Motion to Expunge the judgment, mainly assigning as grounds that the judgment had been prematurely taken. Later, she filed an amendment to the Motion to Expunge, assigning the additional ground that the plaintiff (appellee here) was a foreign corporation not qualified to do business in Alabama.

Hearing on the Motion to Expunge, as amended, was had on January 16, 1968 and the court denied the Motion to Expunge, as amended.

From the judgment of the County Court the garnishee-appellant appealed to the Circuit Court of Tuscaloosa County, as she was authorized to do by the local act that created the County Court. See Act No. 311, Acts of Alabama, Regular Session 1965, Section 13.

Appellant also filed interrogatories to appellee and upon appellee's failure to answer the same filed a motion to compel the appellee to answer.

After hearing, the Circuit Court of Tuscaloosa County denied appellant's Motion to Compel Answers to Interrogatories, denied appellant's Motion to Expunge and ruled that the judgment theretofore rendered against garnishee-appellant was a valid judgment. From that final judgment of the Circuit Court this appeal was taken.

Appellant's Assignments of Error Nos. 1, 3, 4, 6, 7, 8, and 9 all go to the proposition that the Circuit Court erred in affirming the judgment of the County Court refusing to expunge and declare for naught the judgment theretofore rendered against the garnishee. We think that our ruling on these Assignments of Error will be dispositive of the appeal and that it will not be necessary to discuss the other Assignments of Error or appellee's Cross-Assignments of Error.

The question presented by the Assignments of Error heretofore enumerated is in substance as follows:

Is a final judgment rendered against a garnishee void because it is taken in less than thirty days after service of the conditional judgment upon the garnishee and when the conditional judgment was taken in less than thirty days after service of the initial process of garnishment upon the garnishee when viewed in light of Title 7, Sections 1019 and 999, Code of Alabama 1940 (Recomp.1958) and in view of Section 9 of Act No. 311 of the 1965 Regular Session of the Legislature of Alabama, Vol. 1, p. 426?

Otherwise stated, are the provisions of the general law on garnishment as to the return day of the writ and as to the length of notice of the entering of a conditional judgment against the garnishee applicable to garnishment writs and notices issued out of the County Court of Tuscaloosa County; or is the provision of Section 9 of the act creating the court (Act No. 311, Acts of Alabama, Regular Session 1965, Vol. 1, p. 426) applicable? The pertinent part of Section 9 of Act 311, supra, reads as follows:

'In all civil cases in this court the defendant shall have ten days after service to plead, answer, or demur in any proceedings brought therein. * * *' (See page 430)

Appellant contends that Title 7, Section 999, Code of Alabama 1940 (Recomp.1958) (requiring that the writ be answered under oath within thirty days) and Title 7, Section 1019, Code of Alabama 1940 (Recomp.1958) (requiring that the garnishee have thirty days notice of the entering of a conditional judgment before the same is made final) are applicable to garnishment proceedings in the County Court of Tuscaloosa County. On the other hand, appellee contends that Section 9 of Act No. 311, supra, is applicable, and that the judgment was not prematurely entered.

The appellant cites Hollis v. Bender, 34 Ala.App. 4, 7, 40 So.2d 876, 877 quoting as follows:

'Garnishment proceedings are purely of statutory creation, with no affinity to any action known to the common law. It is regarded as a mode of attachment, and unless the case is influenced and controlled by some provision of the statute (Tit. 7, Sec. 995, Code 1940) relief must be denied. * * *'

Appellant also quotes from Miller v. State ex rel. Peek, 249 Ala. 14, 22, 29 So.2d 411, 416, 172 A.L.R. 1356, as follows:'

"'Special provisions relating to specific subjects control general provisions relating to general subjects. The things specially treated will be considered as exceptions to the general provisions.'

"'When the law descends to particulars, such more special provisions must be understood as exceptions to any general rules laid down to the contrary; and the general rules must not (vice versa) be alleged in confutation of the special provisions."'

See also Cooper Transfer Co., Inc. v. Alabama Public...