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Smith v. Realty

Alabama Court of Civil Appeals

July 12, 2019

Ieisha Smith
v.
Renter's Realty

          Appeal from Madison Circuit Court (CV-18-69)

          PER CURIAM.

         Ieisha Smith appeals from a judgment of the Madison Circuit Court ("the circuit court") affirming a judgment of the Madison District Court ("the district court"), which denied Smith's claim of exemption in connection with a writ of garnishment.

         In the district court, Renter's Realty ("Renter's") had prevailed against Smith in its unlawful-detainer action against her. The district court initially entered an order of possession in favor of Renter's. On December 22, 2016, it entered a judgment ordering Smith to pay damages and costs in the amount of $5, 145. Smith did not appeal from the December 22, 2016, judgment. There is no record that Smith paid the judgment or attempted to arrange a payment schedule with Renter's. Thus, on May 17, 2017, Renter's filed a process of garnishment in the district court. A writ of garnishment was issued on May 18, 2019, to Smith's employer. On June 12, 2017, Smith filed in the district court a motion to stay the garnishment, a verified declaration, and a claim of exemption. In her claim of exemption, Smith asserted that her biweekly wages were approximately $900 or less and that she used all of her income to pay current expenses for her family and herself. She said that she did not accumulate wages from paycheck to paycheck. Citing Art. 10, § 204, of the Alabama Constitution of 1901 ("§ 204"), Smith claimed that her wages were exempt from garnishment.

         The district court granted the stay in an order entered on June 13, 2017. On June 15, 2017, Renter's filed an objection to the claim of exemption, arguing, among other things, that Smith was barred from claiming wages as personal property subject to exemption by the application of § 6-10-6.1, Ala. Code 1975. Approximately one year later, on June 27, 2018, after a number of hearings, the district court entered a judgment denying the claim of exemption and reinstating the writ of garnishment. On July 2, 2018, Smith appealed to the circuit court from the district court's judgment and included the record created in the district court. The record indicates that on July 17, 2018, Smith filed a "response" to Renter's challenge to her claim of exemption. In her response, Smith argued that her wages could be claimed as a personal exemption under § 204 and Alabama caselaw dating to 1884.

         Smith and Renter's filed trial briefs in the circuit court regarding the constitutionality of § 6-10-6.1, Ala. Code 1975. That statute provides:

"(a) Wages, salaries, or other compensation of a resident are not personal property for the purposes of exemption from garnishment, levy, sale under execution, or other process for the collection of debt.
"(b) It is the intent of this section to exclude from the meaning of personal property the wages, salaries, or other compensation of a resident for the purposes of the personal property exemption under Section 6-10-6[, Ala. Code 1975, ] and Section 204 of the Constitution of Alabama of 1901."

         On August 10, 2018, the circuit court held a hearing on Smith's claim of exemption and Renter's contest of the claim. On August 13, 2018, the circuit court entered a judgment stating that the attorneys for the parties had appeared before it on August 10, 2018, and had "consented to the Court rendering a decision on claim of exemption without further hearing." The circuit court then denied Smith's claim of exemption, citing § 6-10-6.1 and noting that that statute had become law on June 11, 2015, before the writ of garnishment had been issued.

         Smith filed a timely motion to alter, amend, or vacate the circuit court's judgment. The circuit court scheduled a hearing on the motion; however, it appears that the motion was denied by operation of law before the hearing was held. Smith then filed a timely appeal to this court.

         On appeal, the only issues Smith raises concern the constitutionality of § 6-10-6.1. Alabama law requires that, in any proceeding in which a "statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the state shall ... be served with a copy of the proceeding and be entitled to be heard." § 6-6-227, Ala. Code 1975 (emphasis added).

"'[S]ervice on the Attorney General, pursuant to § 6-6-227, is mandatory and jurisdictional.' Barger v. Barger, 410 So.2d 17, 19 (Ala. 1982). Although § 6-6-227 is found within the Declaratory Judgment Act, when the constitutionality of a statute is challenged, service on the attorney general is required regardless of whether the action was in the nature of a declaratory judgment action. Wallace v. State, 507 So.2d 466 (Ala. 1987)."

Tucker v. Personnel Bd. of Dothan, 644 So.2d 8, 9 (Ala. Civ. App. 1994). Therefore, before we can consider the merits of the appeal, this court must determine whether the requirements of § 6-6-227 were met.

         In Ex parte Jefferson County, 767 So.2d 343 (Ala. 2000), our supreme court discussed the purpose of ยง 6-6-227 and what constitutes providing the attorney ...


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