Opinion
1 Div. 147.
February 19, 1935. Rehearing Denied April 2, 1935.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Garnishment suit by James F. Daves and John W. Daves, doing business as Industrial Finance Company, against B. C. Rain, Secretary-Treasurer, Board of School Commissioners of Mobile County, as garnishee of B. A. Lyons, defendant. From a judgment discharging the garnishee, plaintiff appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Ex parte Board of School Commissioners of Mobile County, 230 Ala. 304, 161 So. 108.
Inge, Stallworth Inge, of Mobile, for appellant.
Money due officials or employees of a city, county, or state government, or department or institution thereof, as salary, may be garnished. Code 1923, § 8088. The privilege of assenting or not assenting to the garnishment is applicable only to state officials or agents, and not to city or county officials or officials of institutions or departments of the city or county. Code 1923, § 8092; Shepherd v. Jones, 228 Ala. 307, 153 So. 223. The board of school commissioners is a municipal Corporation, the salaries of whose employees are subject to garnishment or other suit. Code, § 8088; Code 1875-76, p. 363; Clark v. Mobile School Com'rs, 36 Ala. 621; Board of Education v. Watts, 19 Ala. App. 7, 95 So. 498; Kimmons v. Jefferson County Board, 204 Ala. 384, 387, 85 So. 774; Greeson Mfg. Co. v. County Board of Education, 217 Ala. 565, 147 So. 163. An official of such board is not an official of the state within Code, § 8092. Acts 1875-76, p. 363; Code, § 8088; Shepherd v. Jones, supra. Appellee was subject to be orally examined.
Pillans, Cowley Gresham, of Mobile, for appellee.
The appellee is not subject to suit. Cox v. Board of Trustees, 161 Ala. 639, 49 So. 814; Alabama I. School v. Addler, 144 Ala. 555, 42 So. 116, 113 Am.St.Rep. 58; Denson v. Ala. P. Inst., 220 Ala. 433, 435, 126 So. 133; Alabama G. I. School v. Reynolds, 143 Ala. 579, 42 So. 114; White v. Insane Hospital, 138 Ala. 479, 35 So. 454; Turk v. Board of Education, 222 Ala. 177, 131 So. 436. A garnishment proceeding is a suit by the garnishing creditor against the garnishee. The Constitution protecting such an agency from suit, the Legislature may not permit a suit against it. Travis v. Tartt, 8 Ala. 574; Moore v. Stainton, 22 Ala. 831, 832; White v. Simpson, 107 Ala. 386, 393, 18 So. 151; Dishman v. Griffis, 198 Ala. 664, 666, 73 So. 966.
This action was begun in the inferior civil court of Mobile by affidavit alleging: "James F. Daves and John W. Daves, doing business as Industrial Finance Company hath obtained judgment against B. A. Lyons for $79.50 Dollars besides cost of suit, before the Inferior Civil Court of Mobile, and that B. C. Rain, Secretary and Treasurer Board of School Commissioners, Mobile County, Alabama is supposed to be indebted to or have effects of the said B. A. Lyons in his possession, or under his control, and that he believes process of Garnishment is necessary against the said B. A. Lyons to obtain a satisfaction of this judgment." Summons was issued and served on board of school commissioners by service of B. C. Rain, as secretary and treasurer. Rain makes answer denying any indebtedness for salary, but admitting an indebtedness by the board to the defendant in execution in the sum of $300; but, in closing, his answer is the following: "The garnishee does not assent to said garnishment but expressly dissents thereto."
In the inferior civil court of Mobile, judgment was entered against the garnishee. This judgment was appealed to the circuit court of Mobile, where the cause was heard de novo, and on objection and motion of garnishee the court refused to proceed with the case and entered a judgment discharging the garnishee.
The questions involved are raised in various ways, but we think the above statement is sufficient to make clear the rulings of this court on the questions presented.
The proceedings were begun, technically speaking, against Rain as an individual. Briel v. Exchange National Bank, 172 Ala. 475, 55 So. 808. But the answer to the writ is that of the board of school commissioners, and the cause progressed upon the assumption that the board of school commissioners and not Rain was the real party, and, no point being here made of the irregularity in that respect, we shall proceed to decide the appeal on its merits.
It seems clear to us that, under the decisions construing section 8092 of the Code of 1923, the board of school commissioners of Mobile county is not such agency of the state as to exempt it from garnishment under and by authority of section 8088 of the Code. The protection from garnishment given by section 8092, supra, extends only to the state and its immediate officers and governmental agencies. Many reasons might be given for this conclusion, but we are convinced that the question is fully answered in the following cases: Shepherd v. Jones, etc., 228 Ala. 307, 153 So. 223; Worthington v. City Board of Education, 228 Ala. 660, 154 So. 796.
Being subject to the garnishment and not being exempt under the statute, by reason of its dissent, appellee should have been required to answer orally on the proper motion of plaintiff.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.