Tarver v. Household Finance Corp.

BRADLEY, Judge.

The appeal in this case results from an adverse ruling on a suit filed by appellant against appellee in the Circuit Court of Mobile County seeking damages for wrongful garnishment.

The complaint filed in the Circuit Court was in two counts and alleged that appellee had wrongfully caused a writ of garnishment to be issued out of the Court of General Sessions of Mobile County and served on appellant’s employer, all to his detriment. It was also alleged that appellee had sued for and obtained a judgment against appellant in the Court of General Sessions but before the garnishment was sued out, appellant had appealed said judgment to the Circuit Court and while the appeal was pending in the Circuit Court, appellee attempted to have the garnishment executed by levying on wages owed to him by his employer.

The demurrers to the complaint and as amended were sustained. From the adverse rulings on the pleadings, appellant took a non-suit, with leave to appeal. Appellant has appealed to this court, and as error has assigned the ruling on the demurrer to his amended complaint.

At least two grounds of the demurrer state that the complaint failed to allege the existence of an outstanding and unpaid judgment in the Court of General Sessions against appellant and in favor of appellee at the time the garnishment was issued out of said court.

The Court of General Sessions had awarded appellee a judgment in the amount of $750.00 based on a note made by appellant to appellee. From that judgment appellant appealed to the Circuit Court.

Appellant says that the appeal to the Circuit Court of Mobile County from a judgment of the Court of General. Sessions shall be tried de novo; that the perfection of the appeal in the Circuit Court from the judgment of the Court of General Sessions has the effect of setting aside and vacating the General Sessions’ judgment and placing the matter in the Circuit Court for the rendition' of a new judgment. And, as a consequence, there was no subsisting judgment in the Court of General Sessions at the time the garnishment was sued out; hence, appellant says, the garnishment was wrongful.

Appellee counters by saying that the appellant failed to allege that a supersedeas bond had been filed in connection with the appeal, and says also, in brief, that: “An unsatisfied judgment is evidence of a demand against the judgment debtor, which will prima facie support a garnishment proceeding thereon,” citing us to Covington v. Robinson, 242 Ala. 337, 6 So.2d 421.

The Court of General Sessions of Mobile County was created by the Legislature of Alabama in 1956, by Act No. 40, Acts of Alabama 1956, Spec.Sess., p. 328. In Section 20 of said Act there is provided a procedure for appealing the judgments of the Court of General Sessions to the Circuit Court. The review in the Circuit Court is by trial de novo.

In 1961 the Legislature amended Section 20 of Act No. 40, supra, to provide:

“* * * the trial in the circuit court shall be de novo and shall conform to the procedure now fixed by law in appeals from courts of justices of the peace. * * *” Act No. 268, Acts of Alabama 1961, Spec.Sess., p. 2284.

The appeal bond provision of Act No. 40, supra, i. e., Section 21, was amended in 1966 to provide for a bond, “in an amount equal to the amount of such judgment and the costs of court.” Act No. 367, Acts of Alabama 1966, Spec.Sess., p. 506.

The procedure for appeals from the courts of justices of the peace is contained in Title 13, Chapter 8, Article 6, Code of Alabama 1940, as Recompiled 1958. Section 477 of Title 13 provides for an appeal to the Circuit Court, and Section 484 of said Title provides that the review of such an appeal shall be by trial de novo.

In Abraham v. Alford, 64 Ala. 281, the Supreme Court had the following to say about appeals from justices of the peace' courts:

“Appeals from judgments of a justice of the peace are triable de novo, upon their merits, without regard to the judgment of the justice. By the appeal, that judgment is vacated, and ceases to have any force or effect, either as an estoppel, or as a matter of evidence. Freeman on Judgments, Sec. 328. The judgment of the justice is not reversed, or affirmed; but a new, distinct, and independent judgment, as may he required by the merits shown on the trial, is rendered by the City or Circuit Court.”

In Louisville & Nashville R. Co. v. Lancaster, 121 Ala. 471, 25 So. 733, the Supreme Court said that a trial de novo in the Circuit Court means that the case is tried there, “as if no trial had ever been had, and just as if it had originated in the circuit court.”

The complaint states that an appeal from the judgment obtained by appellee in the Court of General Sessions was perfected to the Circuit Court prior to the suing out of the garnishment in the General Sessions Court. This being so, there-was no valid, outstanding or subsisting* judgment of the General Sessions Court on which to base the garnishment.

The appeal of the General Sessions’ judgment to the Circuit Court vacated that judgment and placed the matter in the Circuit • Court for a new trial and the rendition of a “distinct and independent judgment” by that court.

Once the appeal of the judgment of the General Sessions Court had been perfected to the Circuit Court, it was “as if no trial had ever been had,” in the General Sessions Court, and as if the whole matter “had originated in the Circuit Court.”

Whether an unsatisfied judgment will prima facie support a garnishment, or whether the averments of the complaint should have made some mention of a supersedeas is of no consequence with the case in its present posture.

At the time the garnishment was sued out of the Court of General Sessions, there was no outstanding judgment in that court in favor of appellee that would support a garnishment proceeding for the simple reason that the judgment being relied on had been vacated by the appeal of that judgment to the Circuit Court. It was as if that judgment never existed.

The sustaining by the court of appellee’s demurrer to appellant’s amended complaint was prejudicial error for which this case must be reversed and remanded.

Reversed and remanded.