
    Burgin v. Ivy Coal & Coke Co.
    
      Proceedings io revive Judgment.
    
    1. Garnishment proceedings; finality of judgment. — In a garnishment proceeding where the garnishee’s answer admits an indebtedness and there is a judgment against him for the amount admitted to be due the defendant, without any order of continuance whatever, such judgment amounts to a final adjudication of the liability of the garnishee, and has the effect of terminating the suit and discharging the garnishee.
    2. Same; same; revivor of judgment. — In a garnishment suit, where a final judgment on the garnishee’s answer is rendered, without an order of continuance being made at the time, the court is without power to retain or subsequently reinstate its jurisdiction over the garnishee; but in order to compel a further answer and to give the court jurisdiction to render another judgment against such garnishee it is necessary to issue new process of garnishment against him.
    3. Same; same; same. — In a proceeding to revive a judgment against a garnishee, where it is shown that not until after the lapse of several days from the rendition of a judgment on the garnishee’s answer, an order of continuance was made, and subsequently upon the failure of the garnishee to further answer, a judgment nisi was rendered, which was, upon the day named therein made final, and it was further shown that there was no service of process made upon the garnishee or appearance by him prior to the rendition of such final judgment sought to be revived, the judgment nisi and the pursuant judgment thereon are void; and, therefore,-the plaintiff is not entitled to a revivor, since there can be no revivor of a nullity.
    
      4. Same; revivor• of judgment; appeal from justice’s judgment does not admit jurisdiction. — In a proceeding commenced before a justice of the peace to revive a judgment rendered by him against a garnishee, an appeal by such garnishee from a judgment of revivor rendered oy the justice, is not an admission of the jurisdiction of the justice’s court to render the judgment against the garnishee sought to be revived. An application to revive must begin in the court in which tlie judgment sought to be revived was rendered; and, therefore, in such a case the circuit court can acquire jurisdiction of the application only by appeal.
    
      5. Same; same; jurisdiction of circuit court on appeal-. — In a proceeding to revive a judgment rendered against a garnishee in .a justice of the peace court, where it is shown that there were two judgments against the garnishee and that it was the later one which was sought to be revived, on an appeal to the circuit court from the judgment reviving said last judgment, said court acquired no jurisdiction to revive the first judgment.
    6. Pleading and practice; sufficiency of judgment upon demurrer. The recital in a judgment entry that demurrers to pleadings are overruled or sustained, as the case may be, without words of adjudgment by the court, are insufficient as a judgment upon such pleadings, and will not be reviewed on appeal.
    Appeal from tire Circuit Court of Jefferson.
    Tried before tlie Hon. A. A. Coleman.
    Tliis was a proceeding instituted by tlie appellant, J. G. Burgin, in a court of a justice of tlie peace of Jefferson county, to revive a judgment against tlie appellee, tlie Ivy Coal & Coke Company, which was alleged to have been rendered against it as garnishee on April 21, 1896, pursuant to a judgment nisi previously taken in default of answer by said garnishee. The garnishment was sued out by Burgin upon a judgment rendered in his favor against one S. W. Elliott. Upon the hearing before the justice of the peace, there was judgment rendered reviving said alleged judgment against the garnishee, and from this judgment of revivor tlie Ivy Coal & Coke Company appealed to the circuit court. In the 'circuit court the plaintiff filed a declaration setting forth his claim to have the alleged judgment revived, in which he averred that on February 26, 1896, he obtained a judgment of condemnation of $8.15 against the Ivy Coal & Coke Company upon the answer of said company upon said writ of garnishment served upon it, and that after the continuance of said cause the court did, on March 23, 1896, render a judgment nisi against the Ivy Coal & Coke Company for $19.37, and issued notice to said company to show cause why said judgment for $19.37 should not be made final on April 21, 1896. That on April 21, 1896, the said conditional judgment for $19.37 against the Ivy Coal & Coke Company was made final, but that no executions were issued on said judgment for $19.37 within six months as required by laAv; and said judgment has never been satisfied. It was also averred that no execution was issued within six months from the. date of the judgment for $8.15, alleged to have been rendered on February 26, 1896. To this declaration 'filed in the circuit court, the garnishee interposed several demurrers which were sustained, but it is unnecessary to set out these demurrers, for the judgment thereon was not sufficient to authorize their being reviewed on the present appeal.
    On the trial of the cause in the circuit court, in addition to the facts above stated, the following facts were shown by the transcript of the docket kept by the justice who rendered the judgment and which transcript was introduced in evidence: On January 10, 1896, a writ of garnishment was issued against the Ivy Coal ' & Coke Company, which was executed by the -deputy -constable. On January 21, 1896, tiie garnishee answered admitting the indebtedness to the defendant of $8.15, and on said date judgment was rendered against the garnishee for -said amount. The next entry appearing on the transcript -of the justice’s docket was as follows: “January 25. Amount earned to date in January, not ascertained, and. continued for further answer until February 18, 1896.” The other entries pertaining to this particular case were as follow^; “March 12.
    
      Answer continued until March 25, 1896, 10 o’clock.” “March 23. Judgment nisi against Ivy Coal & Coke Company, garnishee, $19.37 and costs.” “March 23. sci. fa. issues April 21, 1896.” “April 21. Judgment final against Ivy Coal & Coke Company, $19.37 and costs.” The other facts of the case are sufficiently stated in the opinion.
    Upon the hearing of the cause,-the court rendered judgment in favor of the defendant, to the rendition of which judgment the.' plaintiff excepted. The judgment entry in reference to the rulings of the court upon the pleadings, was as follows: “On this, the 19th day of
    October, 1899, came the parties by their attorneys, and defendant’s demurrers to plaintiff’s complaint, are by the court heard, considered and sustained, and plaintiff’s demurrers to defendant’s pleas are by the court heard, considered and overruled.” The plaintiff appeals, and assigns as error the rulings of the trial couid to which exceptions were reserved.
    John W. Chamblee, for appellant,
    cited M. & O. R. R. Co. v. Brannon, 96 Ala. 461; Gross v. Spillman, 93 Ala. 170; Foster v. Napier, 73 Ala. 602; Abraham v. Alford, 64 Ala. 281; Galbreaih v. Gole, 61 Ala. 141; Code, § 488.
    John J. Moore, contra,
    
    cited Code, § 481; Tnd. Pab. Co. v. Amor. 'Press Asso., 102 Ala. 475; Martin v. Tally. 72 Ala. 29.
   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 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 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.  