South & North Alabama Railroad v. Falkner

B. F. SAFFOLD, J. — The appellee, having a judgment against F. M. Gilmer, sued out a garnishment against the appellant as his debtor. The company answered that Gilmer was its president; that his salary had not been fixed by the board of directors, but that, of his two immediate predecessors was $6,000 a year; that he had not been paid anything; that he had a large amount of money and other property belonging to the company in his hands; but he was not a defaulter, and there was no complaint of his mismanagement. The court overruled a motion to discharge the garnishee on this answer, and continued the cause to the next term, requiring a'further answer. This action was excepted to. The second answer, at the next term, was similar to the first: Gilmer was- still president; he had received no compensation for his services, and none had been fixed ; he had in his hands many thousand dollars belonging to the company, for which he had not accounted, though he was in no default; in addition, that he claimed whatever was. due him as exempt from execution, garnishment, or attachment, by affidavit presented. Judgment was rendered against the garnishee, for Gilmer’s salary, at the rate of»$6,000 a year. An execution on this judgment being in the hands of the sheriff, the garnishee obtained a supersedeas of it, on an application alleging that writs of garnishment, issuing from the Circuit and City Courts of Montgomery County, had been served on the company, to subject the judgment to the debts of Falkner, and that Gilmer claimed the same under the exemption laws. At the ensuing term of the court, the supersedeas was dismissed on motion of the plaintiff Falkner. .To this the garnishee excepted. The judgment on the answer, and that on the supersedeas, are both appealed from, making two cases under one appeal bond. 1. Was the garnishee entitled to a discharge on its first answer ? It was certainly indebted to Gilmer in some amount. He had performed services, which were not intended to be gratuitous. It was a part of his duty to have money and other effects of the company in his hands, by the misapplication of which he could inflict injury on it far exceeding the value of his services. But it was not pretended that he had done so. No lien in favor of the company on his salary was shown. A claim of damages against him would only have been available as an offset. The salary is not shown to have been payable oftener than once a year, and the year had not expired at the date of the answer. There was no error in refusing the discharge. [118] The continuance is not revisable. Ex parte S. & N. R. R. Co. 44 Ala. 654. 2, 3. The second answer differed from the first, in alleging that Gilmer claimed whatever amount was due from the garnishee, as exempt from garnishment or execution. The affidavit to support the claim is set out, and fails entirely to specify any facts or circumstances which would entitle Gilmer to any exemption. If Gilmer was not the head of a family, and his debt to Falkner was contracted before the adoption of the present Constitution, he would have had no right to any exemption at all. The evidence of the salary allowed to the two immediate predecessors of Gilmer in the presidency, and the performance by him of the same duties, was sufficient to justify the finding of an equal amount for him. There was no error in the judgment. 4. The execution on this judgment was superseded before the appeal from it was taken. Whether the supersedeas issued irregularly or not, we need not inquire. If there was a case for a stay of execution, the execution ought not to have been let loose on the garnishee. The petition for supersedeas was accompanied by an affidavit of Gilmer, claiming exemption under R. C. § 2883, and the “ Act for the relief of laborers and employees,” approved October 10,1868 (Acts 1868, p. 249). The act referred to provides, “ that hereafter the wages of laborers and employees shall, not be subject to garnishment or attachment, except for public dues.” The president of a railroad company cannot be said' to be a laborer or employee, within the meaning of this law. The term “ wages ” indicates inconsiderable pay, without excluding “ salary,” — which is suggestive of larger .compensation for personal services. But its application to laborers and employees certainly conveys the idea of a subordinate occupation which is not very remunerative; one of not much independent responsibility, but rather subject to immediate supervision. Section 2883 of the Revised Code is more comprehensive: “ Where any head of a family in this State has not, of property exempt bylaw from execution more than five hundred dollars in value, the salary or wages of such head of the family, to an amount equal to one half of such wages, in no case to be less than twenty-five dollars per month, shall not be subject to any legal process,” &c. Under this law, Gilmer, as disclosed by his affidavit, was entitled to one half of the compensation due to him from the garnishee. If he was willing to indulge the garnishee to that extent, the plaintiff had no right to enforce its collection. 5. The payment of the money under execution, after service of the garnishments, would have been no defence to the garnishee. Skipper v. Foster, 29 Ala. 330. Section 2951 of the [119] Revised Code directs a stay of execution when the attachment is brought in another court, until notice is given of a final judgment in that court. Instead of dismissing the supersedeas, and refusing relief, the court ought to have determined the matters of the exemption, and of the garnishments, as far as practicable, and allowed an execution for whatever balance of the amount of the judgment the plaintiff was entitled to! The judgment on the answer of the garnishee is affirmed. The judgment dismissing the supersedeas is reversed, and that cause is remanded.