Stickney v. L. E. Lamar

78 So. 903, 201 Ala. 549, 1918 Ala. LEXIS 127

Opinion

SOMERVILLE, J.

Conceding, without deciding, that the plaintiff did not, by controverting the garnishees’ answer, waive his right to move for a judgment on the answer for the subjection to his debt of such property as the garnishees in legal effect admitted they held belonging to the defendant in execution, and conceding further, without deciding, that the Bulk Sales Act is a valid law, we are nevertheless constrained to hold that plaintiff:» motion for judgment on the answer was properly denied.

[1] The answer shows that garnishees are claiming the merchandise conveyed to them by the defendant in execution as purchasers for value; and, while it shows noncompliance with the Bulk Sales Act, it prima facie excludes the application of its provisions by showing that the merchandise in question had before their purchase been duly claimed by Nabors as exempt from legal process. Section 3 of that act provides that:

It “shall not apply to the sale of any goods * * * exempt to the seller from levy and sale under execution and other legal process, except as to those creditors who hold obligations of the seller wherein the seller has waived his right of exemptions to personalty and only to the extent of such obligations.”

The writ of garnishment does not show that plaintiff’s judgment carries a waiver of the defendant’s exemption rights, and there is no presumption that it is a judgment of that character. On its face, therefore, garnishees’ answer does not show arty indebtedness to the defendant, either in money or goods.

[2] It was, we think, incumbent on plaintiff to contest the availability of the exemption claim as a validation of the conveyance, under the proviso of the Bulk Sales Act, by showing, - upon an issue tendered, that his judgment was not subject to the claim of exemptions interposed. Failing to do this, or doing it and not appealing from the adverse judgment on the controverted answer, that judgment must be regarded as conclusive of the question of the validity of the conveyance.

[3] The record in fact shows that in his affidavit of contest of the answer plaintiff alleged that the note upon 'which his judgment was founded contained a waiver of exemptions, and that as to his judgment there could be no valid claim of exemptions. However, the specifications of contest as submitted do not present this issue, and it does not appear what proof, if any, was made. Of course, the affidavit was in the nature of a complaint, and was not self-proving; nor can it be looked to as impeaching or qualifying the prima facie showings of the answer on the motion for judgment thereon.

We cannot pronounce error on the record, and the judgment must be affirmed.

Affirmed.

ANDERSON, O. J., and MAYFIELD and THOMAS, JJ., concur.