White v. Simpson

• Decision Date: 06 June 1895
• Citation: 18 So. 151,107 Ala. 386
• Parties: WHITE ET AL. v. SIMPSON.
• Court: Alabama Supreme Court

18 So. 151

107 Ala. 386

WHITE ET AL. v. SIMPSON.

Supreme Court of Alabama

June 6, 1895

Appeal from city court of Anniston; James W. Lapsley, Judge.

Action by L. V. White and another, for the use of E. F. White against J. L. Simpson to subject a homestead to the payment of a judgment. Demurrers to the bill were sustained, and plaintiffs appeal. Reversed.

The original bill in this case was filed by E. F. White against J. L. Simpson on January 18, 1894. The facts averred in said original bill were as follows: On October 11, 1890, E. F White, the complainant, sued out an attachment in the city court of Anniston, in favor of himself, against L. V. White and Mrs. E. S. White, and on October 16, 1890, said attachment was executed by service of a writ of garnishment on J. L. Simpson. On November 11, 1890, said Simpson filed his answer to said garnishment, admitting indebtedness to the defendants in attachment in the sum of $1,000, due March 11 1892. On June 6, 1892, a judgment was rendered against L. V White and Mrs. E. S. White, defendants, and said J. L. Simpson, garnishee, for the sum of $707.77 and costs of suit, which said money was condemned, in the hands of J. L. Simpson, to the satisfaction of the judgment against L. V. and E. S. White. The judgment entries in the original and garnishment suits are as follows: "Came the plaintiff by attorneys, and due and legal notice to defendants by publication having been proven, and said defendants, having been duly summoned and called, came not, but made default, and, on motion of the plaintiff, it is considered by the court that the plaintiff have and recover of the said defendants the sum of seven hundred and seven and 77/100 ($707.77) dollars, together with the costs in this behalf expended, for which let execution issue. And, as against this judgment, there are no exemptions as to any personal property of the said defendants." "Came the plaintiff by attorney, and it appearing to the court that on the 6th day of June, 1892, the said plaintiff recovered a judgment in this court against the said defendants for the sum of $707.77 and costs of suit, it is therefore considered by the court that the plaintiff have and recover of J. L. Simpson, garnishee, on his answer on file in this cause, the said sum of seven hundred and seven and 77/100 ($707.77) dollars, together with the costs of the original suit, not to exceed the sum of one thousand dollars, for which let execution issue." On June 16, 1892, an execution was issued against said J. L. Simpson on said judgment of condemnation, and was returned by the sheriff on September 29, 1892, "No property found." On December 13, 1893, an alias execution was issued against said Simpson on said judgment, and on December 14, 1893, said J. L. Simpson filed his claim of homestead exemption and other exemptions allowed him under the laws of Alabama. The said Simpson had no other property known to complainant, other than that claimed by him as exempt, out of which the said judgment against him can be satisfied. The bill then further avers that the said indebtedness of Simpson to L. V. White, and on which said judgment of condemnation was rendered, was a part of the purchase money of a certain lot in the city of Anniston sold by L. V. White to said J. L. Simpson, and that said lot is the property claimed by said Simpson as a homestead, and that the complainant is unable to collect his said judgment against J. L. Simpson by reason and on account of said claim of homestead exemption; "that the judgment is for a part of the purchase money of the above-described real estate, due and owing from said J. L. Simpson to L. V. White, and which was condemned by the city court of Anniston in satisfaction of your orator's debt or judgment against the said L. V. White and Mrs. E. S. White, and on which said above execution were issued." The prayer of the original bill is "that on final hearing your honor will give general relief, and will decree a vendor's lien on the above-described real estate, and that the same may be sold to satisfy said judgment." To this bill the respondent demurred on the following grounds: (1) There is no equity in the bill. (2) "The bill shows that the alleged judgment against defendants, L. V. White and E. S. White, is void, because said defendants were not legally served with notice by publication, as required by statute in such cases made and provided." (3) "The bill fails to show that said defendants, L. V. White and E. S. White, were legally served with notice by publication, as required by the statute in such cases made and provided, before said judgment was rendered against them." (4) "The alleged judgment in favor of the plaintiff and against this respondent, as garnishee, only reached the legal rights of the defendants in that proceeding, viz. L. V. White and E. S. White, and yet complainant, by said bill, seeks to enlarge his rights thereby acquired so as to reach and make available an alleged equitable right of said defendants against this respondent." (5) "The statutes of this state authorizing and regulating garnishments only authorize a plaintiff to reach and subject to his claim the legal rights of the defendants, and not his equitable rights, and this court is without power or jurisdiction to apply this statutory remedy to the condemnation of the equitable rights of the defendant, as attempted in said bill." (6) "The statutes in this state authorizing and regulating garnishments provide a specific remedy by judgment and execution against the garnishee in favor of plaintiff in cases where, as alleged in said bill, the garnishee answers, admitting an indebtedness to the defendant; and this court is without power or jurisdiction to substitute another and different remedy therefor, as complainant in this case is attempting to do." (7) "Complainant, by having process of garnishment served on respondent, and obtaining judgment against him as garnishee, as alleged in said bill, chose the statutory remedy of garnishment, and he cannot now be allowed to supplement or enlarge his rights thereby acquired, as attempted in said bill." On the submission of the cause on the demurrers to the bill as originally filed, the court sustained the demurrers. Thereupon the complainant amended the original bill, and, as thus amended, the bill purported to be filed by L. V. White and E. S. White, "who file this bill for the use and benefit of E. F. White." The facts averred in the amended bill were substantially the same as those averred in the original bill, and the prayer of the amended bill was the same. The respondent moved to strike the amended bill from the files, and, upon this motion being overruled, filed a demurrer thereto, assigning, in addition to the ground assigned to the original bill, that said amended bill, as amended, is unwarranted and unauthorized by any rule of equity pleading or practice; that said amended bill does not show sufficient privity between E. F. White, complainant in the original bill, and L. V. and E. S. White, the substituted complainants, to support it in equity; that the amendment does not give the complainant any right to relief in a court of equity. Upon the submission of the cause on the demurrers to the amended bill, the court sustained the demurrers, and, the complainant declining to amend further, his bill was dismissed. The present appeal is prosecuted by the complainants, who assign as error the decree of the court sustaining the demurrers to the original bill, and also the decree of the court sustaining the demurrers to the bill as amended.

Geo. D. Motley, for appellants.

R. B. Kelly and D. D. McLeod, for appellee.

BRICKELL C.J.

The causes of demurrer directed to the validity of the judgment against the...