Young v. Hubbard , 102 Ala. 373 ( 1893 )

McCLELLAN, J.

The claim of exemptions filed by the defendant, Joseph D. Hubbard, on August 2d, 1892, was insufficient in that it is not made to appear thereby that the debt against which the claim was interposed had been contracted since the ordination and enactment of the laws providing for the exemption intended to be asserted. — Randolph v. Little, 62 Ala. 396. The insufficiency of this claim, however, appears to have been waived by the plaintiff: without objecting to it on this ground, he filed an affidavit of contestation.

The claim of August, 1892, had reference to and covered eighty dollars due and to become due defendant from the garnishee for services rendered in June and July, 1892. Defendant continued in the service of the garnishee until December 31st, 1892; and in March, 1893, the garnishee answered in this and another — McPhillips’ — case against Hubbard that it then owed defendant a certain sum which was greater than the total of the judgments in both cases. On January 19,1893, the defendant had interposed a claim of exemptions in the McPhillips ’ case to the money due him from the garnishee. After answer, the defendant on March 18, 1893, against plaintiff’s objection, filed in this case the claim which he had two months before interposed in the McPhillips’ case without re-verification. This claim as thus propounded in the case at bar was fatally bad in two particulars. Even in respect of McPhillips’ judgment it did not show that the debt against which it was asserted had been contracted since the passage of laws giving the exemption sought to be effectuated; and being asserted against McPhillips’ debt and not originally against that of plaintiff, and having when verified no reference to plaintiff’s demand, its averment of the conclusion that defendant was entitled to the exemption asserted can not be construed to have reference at all to the debt involved in the present case. There is, therefore, no averment of facts which, if true, show that the defendant is entitled to an exemption of the money held by the garnishee from condemnation to the satisfaction of this plaintiff’s judgment, nor even any averment of the conclusion from facts not set out that he is entitled to such exemption.

The other particular in which the claim as interposed in this case must be adjudged to be wholly insufficient is this : The law requires that a claim of exemptions interposed after levy of garnishment must contain, or be accompanied by, a statement setting forth an inventory of all the personal property, choses in action and money belonging to the claimant, “and the value and location thereofand this statement, as well as the claim itself, must “be verified by oath.” — Code, §§ 2525, 2533. It is too manifest to need discussion that the verification required by the statute must be of a presently existing state of facts : it must have reference to the property the defendant has at the moment of filing the claim and making the statement. What property, choses in action or money the defendant owned a year before the claim is filed, it is wholly immaterial to inquire. His rights depend upon the amount of property he owns to-day, at the moment of his solemn statement under oath, not upon what he had last year or last month or yesterday. And the plaintiff is entitled to know affirmatively from his claim and inventory what he has now. Had the claim filed on March 18, in terms, stated that on the 19th day of the preceding January the defendant owned the property therein described and was then entitled to have the money due him from the garnishee exempted from the satisfaction of plaintiff's judgment, it would not, we apprehend, be for a moment insisted that the claim and inventory were sufficient and made a prima facie showing for the allowance of the exemption; for non constat but that the defendant in the meantime had acquired, and at the time of filing the claim was the owner of, personal property, dioses in action and money which was not and could not have been embraced in the claim. This is precisely the substance, meaning and effect of the claim and statement which was filed in this case, though it does not in so many words aver that two months before it was filed defendant had only the property set forth in it, and was then entitled to the exemption claimed. This claim and inventory was sworn to on January 18, 1893. It was a statement of the property, &c., which the defendant then had. It asserted that the defendant was then entitled to the exemption claimed, and this only, as we have seen, against the judgment of McPhillips. The paper speaks only of the time when it was originally filed. The defendant swore that, the facts set forth in it were then true. It was taken out of the file in that case and filed for the defendant in this ; but it still speaks only of a state of things existing on the 19th of January, and not of facts existing on the 18th of March. Whether the intervening time be long or short can make no manner of difference. If a defendant can claim exemptions on a state of facts which are shown by his affidavit to have existed two months before, but which are not shown to exist at the time the claim is actually interposed, he may equally well base his claim upon facts existing ten years before. If the requirement that his claim shall be accompanied by a sworn statement showing the personal property, choses in action and money belonging to him, and the location thereof, at the time the claim is propounded can be filled by his affidavit that two months before he owned only certain described personal property, &c., it can equally be met by a verified statement of his personal effects ten years before, or by presently filing a sworn inventory made and verified any length of time in the past. There is, we think, therefore, no escape from the conclusion that the claim filed in this case was wholly insufficient and bad in that — if not for other reasons than this and those first adverted to — it was not accompanied by a presently verified statement of the personal property, choses in action and money belonging to him at the time of filing the claim. — Buckland v. Tonsmere & Craft, 90 Ala. 503; s. c. 88 Ala. 312.

The plaintiff did not waive any of the infirmities of the claim of exemptions to which we have referred. To the contrary on account of them he objected to the filing of the claim and moved to strike it out after it had been filed against his objection, and finally moved for judgment against the defendant and his sureties on the bond given under the act of 1890-91 to dissolve the garnishment, notwithstanding the pending of the alleged claim. Plis objection to the filing was overruled, and each of his motions was denied. In each and all of these rulings the trial court erred. The claim should not have been admitted to the file. Having been put on file, it should have been striken out. And its being on the file was no obstacle to the rendition of a judgment on the answer of the garnishee.

Reversed and remanded.