O'Connor & Co. v. Levystein , 136 Ala. 440 ( 1902 )

TYSON, J.

This cause originated in a justice court. It appears that the plaintiff having recovered a judgment against Jones for $58.65 and $5.60 costs, caused a writ of garnishment to issue and be served upon J. P. O’Connor & Co. Jones interposed his claim of exemption to the money which upon a contest was held by the justice to be invalid. Thereupon Jones filed another claim of exemption which the plaintiff moved to strike and also moved for judgment against the garnishee notwithstanding the claim of exemptions. It will here be noted that the record shows that the garnishee had answered the writ of garnishment before these motions were heard. The justice overruled both motions, held the claim of exemptions valid and discharged the garnishee. Thereupon the plaintiff appealed to the city court. It will thus be seen that one of the issues to be tried and determined by -the city court--was the validity vel .'non of the claim of exemptions. • . .

It is entirely clear that unless the levy made by the service of the-writ of. garnishment was upon property that could-he. subjected to the plaintiff s 'debt,..no judgment .could., be. rendered in .his favor against the garnishee. No matter, what the answer of the garnishee was, the claim of exeinptions.was a barrier ip the way of.the plaintiff which, prevented his., obtaining a judgment against.the garnishee, until.it was disposed of.- And in the matter, of its disposition the plaintiff was the actor.; and until it was gotten rid of by some ruling of the court, we know, of .no way by which a judgment coul d be rendered against the garnishee. The judgment rendered by the city court shows no disposition of the claim of exemption and, therefore, no right by the plaintiff .to recover against .the garnishee. The .principle we have declared is analogous, to, the one allowed to control in the following cases, to-wit: Lehman, Durr & Co. v. Hudmon, 79 Ala. 532 Crow v. The Decatur Bank, 5 Ala. 249; McCoy v. Harrell, 40 Ala. 232; 11 Ency. Pl. & Pr. 865, and cases cited in note 6.

The other members of the court, without committing themselves to the propositions above, entertain the opinion that the court erred in rendering final judgment against the garnishee for the want of an answer. TJnder the statute, if the plaintiff was entitled to any judgment against the garnishee, it was only a judgment nisi. — § 23 95 of Code.

The cases of Case v. Moore, 21 Ala. 758, and Lehman, Durr & Co. v. Hudmon, 85 Ala. 135, relied upon by ap-pellee’s counsel as sustaining a contrary view, have no application here. In those cases the judgment was against the garnishee in the justice court, and the ap'peal was by him to the circuit court.

Reversed and remanded.