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 ...