Chamberlain v. Mobile Fish & Oyster Co. , 137 Ala. 187 ( 1902 )

HAEALS'ON, J.

The plaintiff recovered a judgment against Whiting Ames in the circuit court, of Mobile county, on the 21th of April, 1896, for $668.30; and garnished the Mobile Fish & Oyster Company, on the 19th December, 1900, ■ as debtor to the defendant. That company, on the 21th April, 1901, answered denying indebtedness, which answer' was; on the same day, duly contested by the plaintiff. The defendant,, Ames, on the 25th November, 1901, filed with the clerk of the court, under' section 2059, a claim .of exemption of ,his wages from the garnishee, setting' out that they owed him wages at $50 a month from December 15th, 1900, to April 1st, 1901, and for the months of May, 1900, to the 1st .of January, 1901, at the same rate, which sums he claims as exempt from levy and sale. He also filed, on the 27th November, 1901, an amended claim of exemption, making the same claim in more extended form, in which he set. up- the payment to him, at different times, from the date of the service of the garnishment,'to Nov. 30th, 1901, aggregating $550, which lie claimed as exempt to him.

At the fall term, 1901, the contest of the answer coming on to he heard, the plaintiff moved the court,— quoting, the language of the motion, — “to- strike out said purported claim of exemptions from the file and grant her a judgment against the garnishee, the Mobile- Fish & Oyster ’Company, for the sum of $¡550, or so much thereof as is shown to- have been paid to said Whiting Ames by said company, before he had filed any valid claim of -exemptions ’ thereto, in contempt of of the process of the court.” The grounds f-o-r said motion were set out-,, and the motion was verified. The motion corning on to be heard at that term o-f the court, was passed on by the court. - The minute entry recites* that “the plaintiff’s motion, filed .November 27fb, 1901, to strike claim- of exemptions from file and render judgment against the garnishee, ■ Mobile Fish & Oyster Co., having been submitted to the court at' a previous day 'of this term," together with all other papers in the cause, after a careful consideration by the court, it is ordered and adjudged by the court-,, that thé plaintiff’s said motion, filed Nov. 27th, 1901, to‘strike, .the claim of exemptions.and render judgment against, tire garnishee, be and the same is hereby refused.” It is -from this ruling, .the appeal is prosecuted. - ■■

That ruling was- not, in -any sense,-a • final judgment discharging the garnishee, from which an appeal will lie. — Baldwin v. Roman, 126 Ala. 266; Bell v. Otts, 101 Ala. 186; Wright v. State, 103 Ala. 95; Marks v. State, 131 Ala. 44; Barneman v. Morrison, 132 Ala. 638; 32 So. Rep. 649. From aught appearing, the garnishment. proceeding is still pending in the court below on which .trial may-he. had.. . . ,:

'Ap-peal.-. dismissed.