Appeal from Mobile Circuit Court. (CV-92-003073.02). Michael E. Zoghby, TRIAL JUDGE.
Released for Publication March 10, 1995.
Richard L. Holmes, Retired Appellate Judge. All the Judges concur.
The opinion of the court was delivered by: Holmes
HOLMES, Retired Appellate Judge
This is a garnishment case.
In August 1990 James Grant entered into a lease agreement with Daniel Ray Pierce and Darlene Pierce. The period of the lease was from September 1, 1990, through August 31, 1991. The total value of the lease was $5,100. The lease provided, in pertinent part: "The lessee hereby waives all right which lessee may have under the Constitution and Laws of the State of Alabama or any other State of the United States, to have any personal property of the lessee exempt from levy or sale or other legal process."
In August 1992 Grant filed a complaint against the Pierces, wherein he claimed that $4,421.42 was due under the lease, together with interest, attorney fees, and costs. The complaint stated, in pertinent part: "In the event Plaintiff's contract contains a clause allowing for waiver of exemption of personal property under the laws of Alabama, Plaintiff hereby claims the benefit of said provision."
The Pierces were served with a copy of the complaint. We would note that only Daniel Ray Pierce prosecutes this appeal.
Pierce failed to answer the complaint. Thereafter, Grant filed an application for entry of default and default judgment against Pierce. It is undisputed that a copy of the lease was attached to Grant's application for entry of default and default judgment.
The case action summary states, in pertinent part: "February 12, 1993--Judgment by default for [Grant] and against [Pierce] for the amount of $5,278.83 and costs of court. /s/ Susan F. Wilson CLERK."
Grant caused a garnishment to be issued against Pierce on September 29, 1993. On October 26, 1993, Pierce filed a declaration and claim of exemption and a motion for stay of garnishment and for stay of condemnation. On November 2, 1993, the garnishment was dismissed upon Grant's motion.
On November 22, 1993, Grant filed a motion to amend the judgment nunc pro tunc. This motion alleges, in pertinent part:
"Due to clerical error or inadvertence, said judgments were entered with no notation as to whether or not the judgments were with or without waiver of exemption. [Grant] would show unto the court that under the terms of the lease agreement signed by the [Pierces], they did indeed waive exemption rights.
"Wherefore, [Grant] moves this court to amend the judgments entered against [the Pierces] nunc pro tunc so as to reflect that said judgments are with waiver of ...