Burgin v. Ivy Coal & Coke Co.

SHARPE, J. This was a proceeding begun in the court of a justice of the peace to revive what is alleged to be a judgment rendered against the appellee garnishee on April 21st, 1896, pursuant to a previous judgment nisi taken in default of answer. On the application to revive, the justice rendered judgment of revivor from which the garnishee appealed. In the circuit court the plaintiff filed a declaration presenting de novo his claim to have that judgment revived and also averring a right to have revived a prior judgment obtained by him on the garnishee’s answer in [661] the same garnishment suit. As evidence of the alleged judgments he introduced a transcript from 'the justice’s docket which, as set out in the bill of exceptions, shows a judgment rendered against the garnishee on its answer on January 21,1896. That the cause was then continued for further answer does not appear from the transcript or elsewhere in the bill of exceptions. Another writing purporting to he a transcript from the justice’s docket is copied into the record wherein an order of continuance is found under the date of January 21st, 1896, but it is not shown to have been used on the trial. The bill of exceptions must govern as to which was there used and treated as the correct transcript, and looking to that the order of continuance does not appear to have been made until January 25th, 1896. Other entries show that a judgment nisi was thereafter rendered and made final. If thy transcript so exhibited is 'correct a;s to dates, 'the judgment on the garnishee’s answer was a final adjudication of Ids liability. Regularly, if the garnishee’s answer disclosed a certain but immature liability to the defendant, a judgment would have been rendered with suspension of execution until the debt matured. — Code, § 2191. Or if it showed under an existing contract a contingent future liability besides debt presently due, the case might have been continued for further answer without rendering a present judgment unless a present judgment and .continuance was consented to. — Security Loan Asso. v. Weems 69 Ala. 584. If the could had power without the garnishee’s consent to keep him in court after judgment rendered on Ms answer, that power must have been exercised at the time of the judgment, and while the garnishee was before the court, otherwise the judgment had the effect of terrginating the suit and thereby discharging him. The justice’s court could not, by an order of continuance made four days after the first judgment, retain or reinstate its jurisdiction over the garnishee. At that time new process of garnishment was necessary to compel a further answer and to give the court jurisdiction to render a judgment nisi.- The bill of exceptions recites, that “it was admitted on the trial that the transcript of the [662] proceedings before the justice and the papers introduced in evidence showed all the proceedings in the justice’s court, and it was admitted that they did not show and that there was no service of process made on defendant or appearance by defendant in said justice court prior to the rendition of the judgment for $19.37 on April 21, 1896, sought to be revived in this action.” This admission together with the recitals of the transcript used in evidence show that the judgment nisi and the pursuant judgment were void for lack of proceedings necessary to call into exercise jurisdiction of the justice’s court over the subject matter as well as over the parson of the garnishee. There can be no revival of a nullity. There is no merit in the plaintiff’s contention that the garnishee’s appeal from the justice’s judgment of revivor admitted jurisdiction in the justice court to render the money judgment. An application to revive must be begun in the court in which the judgment sought to be revived was rendered.- The circuit court could acquire jurisdiction of the application only by appeal. Since the appeal was alone from the judgment reviving the last money judgment of the justice, it had no jurisdiction to •revive the first judgment. — Francis-Chenoweth Co. v. Bailey, 104 Ala. 566. Recitals in the record of rulings on demurrers to pleading’s do not amount to judgments disposing of the demurrers, and therefore according to repeated decisions of this court are insufficient to support assignments of error. — Jasper Mer. Co. v. O’Rear, 112 Ala. 247; Bessemer L. & Imp. Co. v. Dubose, 125 Ala. 442; Hereford v. Combs, 126 Ala. 369. The judgment will he affirmed.