[Lanford v. Lee.] there is no contingency or event in which the widow can take to their exclusion. But this is too narrow a construction of the statute; it is entitled to and must receive a liberal construction-a construction which will promote and consummate the legislative intention, as distinguished from a mere literal construction, which may operate to lessen or defeat it. The plain purpose, the primary and controlling intention, was to provide an exemption for the widow and minor child or chil dren, not exceeding in value one thousand dollars. If the social relation of a family exists between them, its continuance is contemplated, but not compelled. There may be dissolution of it, by a child "leaving the family," and when that event occurs, the child leaving takes in severalty her share of the exemption. But if the social relation of a family does not exist, the right to the exemption is not lost. The widow and minor children are entitled to it, not as an incident to the relation of family, but because of the status of widowhood and minority, and they are entitled to take and hold it, in the condition in which they are found. The widow receives possession of the exemption; it must be delivered to her; but her title is not enlarged, nor that of the minor child or children lessened. The social relation of family not existing, the minor child or children have the sights which they would have if the social relation existed, and they were "leaving the family." The exemption, nor any part of it, having been applied to their maintenance, nor occasion for its application existing, they would be entitled to share in the exemption equally with the widow. In this case, the widow having converted the exemption eo instanti its delivery, into money, it was her duty to pay the appellee one half thereof. Refusing to pay, and claiming the exemption as her own exclusively, the money received by her, at the election of the appellee, became money had and received to her use, for the recovery of which she could maintain assumpsit. Whenever a defendant has money which ex equo et bono belongs to the plaintiff, the action for money had and received may be supported.-1 Brick. Dig. 140, $72. These conclusions lead to an affirmance of the judgment of the city court. Affirmed. [Ingram, Admr. v. Ingram.] Ingram, Admr. v. Ingram. Proceeding to Allot Homestead Exemption to Widow and Minor Children. 1. Limitation of appeal from decree allowing exemption to widow and minor children.-An appeal from a decree overruling exceptions, and confirming the report of commissioners allotting a homestead to a widow and minor children, must be taken within twenty days (Code of 1896, §2089). If taken later, the appeal will on motion, be dismissed. APPEAL from Blount Probate Court. Tried before Hon. TYRE H. DAVIDSON. Appellants, as administrators of the estate of R. L. Ingram, deceased, filed exceptions under section 2084 of Code of 1896, to the report of commissioners allotting and setting apart a homestead as exempt to the widow and minor children of the decedent. On the hearing of the issue upon the exceptions, October 12, 1897, the court decreed "that said report of said commissioners be, and the same is, in all things fully ratified and confirmed, and that said contest be dismissed." From this decree the appeal was taken November 26, 1897. The appellees made a motion in this court to dismiss the appeal because it was not taken within twenty days. R. T. ROBINETT, for appellant. INZER & WARD, contra. COLEMAN, J.-The decree in this case from which the appeal is prosecuted falls directly within the class governed by section 2559 of the Code of 1886, 2089 of the Code of 1896. From all such the statute declares that the appeal must be prosecuted within twenty days. The appeal having been prosecuted long after expiration of the time provided for taking the appeal, the motion of appellee to dismiss the same must be granted. Appeal dismissed. [Roman v. Baldwin.] Roman v. Baldwin. Garnishment on Judgment. 1. Contest of garnishee's answer at term filed; time extended by 2. Extending time for answer; amendment.—The court may extend 4. Not lost by continuance pending written answer.-When no order APPEAL from Montgomery Circuit Court. This was a garnishment on a judgment. The facts are stated in the opinion. The rulings of the court in discharging the garnishee, and overruling plaintiff's motion to require an oral examination of the garnishee, are assigned as error. GUNTER & GUNTER, for appellant, cited, Code of 1896, §§2196, 2175, 594; Steiner v. Bank, 22 So. 30; Talladega Mer. Co. v. McDonald, 97 Ala. 508; Wright v. Swanson, 46 Ala. 708; Wap. Att. & Gar. 470 et seq.; Ensley Fur. Co. v. Rogan, 95 Ala. 594; Buford v. Welborn, 6 Ala. 818. 119 257 124 346 119 257 $132 324 119 257 138 344 [Roman v. Baldwin.] TOMPKINS & TROY, contra, cited, Code of 1896, §§2187, 2196, 2175; Brake v. Curd, 102 Ala. 342; Cross v. Spellman, 93 Ala. 170, 173; Graves v. Cooper, 8 Ala. 811; McDaniel v. Reed, 12 Ala. 616; Ex parte Opelika, 62 Ala. 68; Talladega v. McDonald, 97 Ala. 511, 512; Security L. A. v. Weems, 69 Ala. 588; Cross v. Spellman & Scott, 73 Ala. 172; D. C. & N. O. R. R. v. Crane, 97 Ala. 519; 3 Ala. 114; Stubblefield v. Hazzard, 1 Ala. 38; 3 Brick. Dig. 369, $112; Ex parte Owens, 52 Ala. 473; Lindsey v. Morris, 100 Ala. 549. COLEMAN, J.-At the spring term of the circuit court, 1897, the appellees, who had been summoned as garnishees, filed a written answer, denying indebtedness, and prayed to be discharged. No order was made upon the answer in the garnishment case at that term, and the case seems to have been continued generally. At the fall term, 1897, the plaintiff moved the court that the garnishees be required to answer orally, and the garnishees moved for their discharge. The court refused the motion that garnishees be required to answer orally, and entered judgment discharging the garnishees, basing its action, as appears from the judgment entry, upon the failure of the plaintiff to contest the answer during the term in which the answer was filed. Section 2196, Code of 1896, provides that the plaintiff "may controvert the answer of the garnishee by making oath at the term the answer is made that he believes it to be untrue," etc. We have held that this provision was not mandatory, and that the court, by an order made during the term at which the answer was made, may grant further time for controverting the answer.-Marston v. Carr, 16 Ala. 329; Graves v. Cooper, 8 Ala. 811. But unless the order granting further time to contest is made during the term, it cannot be made at a subsequent term, there being no express or implied waiver by the garnishee. Cross v. Spillman, 93 Ala. 170. Section 2187 of the Code of 1896, provides that "The garnishee must answer under oath according to the terms of the garnishment and may, if required by the plaintiff, be examined orally in the presence of the court." The right to require the garnishee to answer orally is conferred expressly upon the plaintiff, and the universal practice is, that if the written answer is unsatisfactory, to require the gar [Roman v. Baldwin.] nishee to answer orally. The statute does not expressly limit the time within which the plaintiff shall demand an oral examination. The court may extend the time for the garnishee to answer, and his answer filed at any time before judgment for want of answer is held to be within time.—Mercantile Co. v. McDonald, 97 Ala. 508. The garnishee may also amend his answer, and it would seem that this may be done at a subsequent term.-Buford v. Welborn, 6 Ala. 818. In the case of Wright v. Swanson, 46 Ala. 708, the answer of the garnishee not being satisfactory, the plaintiff filed written interrogatories to the garnishee, and the cause was continued by agreement. At the next term of the court the garnishee answered the interrogatories in writing, and the answers not being satisfactory, the plaintiff moved the court for an order requiring the garnishee to answer orally. The garnishee moved to be discharged upon the ground that his answer was not controverted at the term at which it was made, and the court granted his motion and discharged garnishee. On appeal, this court held that the garnishee had waived his right by consenting to the continuance of the case and filing answers to the written interrogatories at a subsequent term, and further held that plaintiff had the right to have garnishee examined orally. The facts in the present case show that garnishees did not answer at the return term of the garnishment, but at the succeeding term; that the cause was continued, and the record does not show that garnishees objected to the continuance. It further shows, that at the following term, the court made an order discharging the garnishees, and that at the same term this order was set aside by consent of the parties, and the plaintiff moved for an oral examination. We are inclined to the opinion, that under the influence of the case of Wright v. Swanson, supra, the garnishees would be held to a waiver, but we prefer to rest our decision upon other grounds. We are of opinion, that a proper construction of the statutes, and the one in harmony with the decisions of this court, is, that the plaintiff has the right to require an oral examination of the garnishee, and this right is not lost or waived by the mere fact that he does not controvert the written answer of the garnishee at the term at which it is made, and that when no order or judgment is made by the court, upon the motion of the |