Adams v. Creen , 100 Ala. 218 ( 1893 )

HARALSON, J.

We have before us the construction of the act of the General Assembly, approved February 21, 1893 (Acts 1892-93, p. 886), entitled “An act-to regulate the issue of garnishments and proceedings therein in the counties of Jefferson, Dallas, Calhoun, Escambia, and Cleburne.”

I. It may be properly premised, that everywhere the remedy by garnishment is wholly dependent upon statutory authorization, and it must be pursued, if at all, under statutory requisites. The legislature may allow the remedy within constitutional limitations, in the Circuit and City or Chancery Courts, or in either, and not in the justices’ courts, or vice versa, and for different amounts, and on different conditions and limitations in the one and the other, or it may withhold the remedy altogether from any court, and no judicial complaint can be made against, a statute because of the conferring or withholding the remedy, or for its limitations and restrictions, if conferred.—8 Am. & Eng. Encyc. of Law, 1098; Waples on Att. & Garnh. 24, 321; Henderson v. A. G. S. R. R. Co., 72 Ala. 32; Heyward v. Phillip-Butt-off Manfg. Co., 97 Ala. 533.

II. As to suits in justices’ courts, the act is general, where the plaintiff desires to sue out process of garnishment, whether the contract on which the suit is based, was entered into before or after the act went into effect, and it curtails the right by garnishment, in those courts, to cases where the contracts sued on have for their consideration bread and meat—whatever those words include—for the support of the defendant and his family, or for house rent. The remedy, therefore, in such courts, as for all contracts entered into before the act went into effect, which were not based on bread and meat, for the support of the defendant and his family, or for house rent, is destroyed altogether, and for such of them as did have such considerations the remedy is changed and impaired.

The decisions of this court heretofore rendered, and those of the United States Supreme Court, referred to in those decisions, leave no escape from the conclusion that this act, as for all contracts entered into before^it took effect, by its terms, violates, in the most palpable manner, section 56, Article Y of our Constitution, which provides, that “There can be no law of this State impairing the obligation of contracts by destroying or impairing the remedy for their enforcement ;” and, is, therefore, void.—Edwards v. Williamson 70 Ala. 145; Osborne v. Johnson Wall Paper Co., 99 Ala. 309.

III. The latter part of section 1 of said, act provides, “And it shall be unlawful for any justice of the peace, or notary public to issue a garnishment on any claim when exemptions have not been waived in writing, and that such waiver shall only be given for necessary bread and meat for support of defendant and his family, or for house rent.”

This clause cannot be fairly construed, as it has been suggested, it may be, as a restraint upon the exercise of the right to waive one’s exemptions, secured by the Constitution ; but, it Avas intended, and must be held, as a limitation, only, on the right of garnishment in justices’ courts, to cases where the defendant has waived his exemptions, and the consideration of the contract was bread and meat or house rent.

In case No. 33, the contract sued on was a note for $3, dated May 25, 1883, payable by defendant one day after date, which included a waiver of exemptions. Garnishment was sought to be sued out against a debtor of defendant, in aid of the action against him. The petitioner, plaintiff in the justice’s court, failed to comply with the provisions of said act, in instituting his garnishment proceeding, and the justice properly refused to issue it.

Mandamus was rightly denied by the Judge of the City Court.

Mandamus denied.

In case No. 32,' the cause of action was a note for $10, payable to plaintiff by defendant on demand, dated 23 January, 1893, which note contains a waiver of exemptions as to personal property. As in the other case garnishment was sought in aid of the suit against defendant, and it is not disputed, that the requirements of the general law on the subject, to procure a writ of garnishment, were complied with, but the justice refused to grant it. Under our ruling, the requirements of the act in question did not apply in this case, and the justice should have issued the writ.

We do not deem it advisable or proper to consider questions urged on us in briefs of counsel, which may arise under this law, but do not arise in these cases.

Mandamus awarded.