Curran v. Fleming ( 1885 )

Blandford, Justice.

[Curran sued Fleming in a justice’s court and garnished the East Tennessee, Virginia and Georgia Railroad. The garnishee answered that it was-indebted to .Curran $46 for daily wages as a brakeman. A judgment was rendered in the main case against the defendant, and on the garnishment a judgment was rendered in favor of the plaintiff against the garnishee for $85.35, which was the amount of principal, interest and costs in the main case. The money Avas paid to the justice, but before it Avas disposed of by him, he Avent out of office, and his successor Avas sworn in, leaving the fund in his hands. Fleming brought a rule against him in the superior court, claiming the money as his wages as a laborer.

The respondent answered, showing substantially the facts stated above as to the garnishment, judgment, retiring from office, etc., and setting out that $4.20 of the amount of the judgment was for his costs. It was admitted that the money was the proceeds of the daily) weekly or monthly wages of Fleming as a laborer.

The' presiding judge ordered that the fund be paid to the movant, less the cost of the rule. Curran excepted, alleging error because the question was res adjudieata ; because no written claim was filed to the fund in .the jus^ tice’s court (but the case was heard in the superior court on oral motion, without objection, on the rule and answer, the answer of the garnishee and other evidence, it being conceded that the movant was a laborer, and that the money in dispute was his daily, weekly and monthly wages); because the judgment of the justice’s court stands in favor of the plaintiff against the garnishee; because the judgment awarding the fund wTas contrary to law and evidence; and because the defendant waived his’privilege of claiming his exemption by not setting it up'in the justice’s court.]