Bledsoe v. Gary, 95 Ala. 70

Bledsoe v. Gary

95 Ala. 70 | Ala. | 1891

"WALKEB, J.

Tbe writ of attachment in tbis case was issued by tbe judge of tbe City Court of Selma, and was made returnable to tbe next term of tbe Circuit Court of Marengo county. Tbe judge of tbe City Court of Selma was, by tbe terms of tbe act creating that court, and of tbe amendment thereto, clothed with “all tbe powers and jurisdiction which are now or may hereafter be lawfully exercised by tbe judges of tbe Circuit Court and chancellors of tina State, including tbe authority to issue writs of injunction, mandamus, certiorari, prohibition, ne exeat, and all other remedial writs.”- — Acts of Ala. 1875-/6, p. 386; Acts 1876-77, p. 266. Tbis court has held that tbe language just quoted confers upon tbe judge of tbe City Court tbe authority to issue, or to order the issue of tbe writs referred to, returnable into any court of tbe State having jurisdiction of them. East & West R. R. Co. v. East Tenn., Va. & Ga. R. R. Co., 75 Ala. 275. Under tbe general statute, a writ of attachment may be issued by any judge of tbe Circuit Court, returnable to any court in tbe State. — Code 1886, § 2931. The writs of attachment against property which are authorized by our statutes are remedial writs within tbe meaning of tbe language above quoted. Tbe plain effect of that language is to confer upon tbe judge of tbe City Court of Selma tbe same authority to issue attachments returnable to any county in tbe State as is vested in the judges of the Circuit Court.

Before tbe levy of tbe writ of attachment tbe defendant Henry T. Bledsoe bad filed in tbe office of tbe judge of pro*74bate bis declaration stating and describing tbe personal property claimed by bim as exempt, and sucb declaration bad been duly recorded. As there was no indorsement on tbe process that there bad been a waiver of exemptions as to personalty, tbe property embraced in tbe declaration was not subject to levy, unless tbe claim of exemptions was contested. —Code, § 2519; Tonsmere v. Buckland, 88 Ala. 312. When a contest has been instituted in tbe mode prescribed by section 2520 of tbe Code, tbe officer bolding the process shall proceed to make a levy, and within three days thereafter shall notify tbe defendant in writing of the same. Tbe last clause of this section seems to require tbe officer to notify tbe defendant of tbe levy only, and not of tbe contest; but section 2522 speaks of tbe service of notice of contest in sucb a way as to indicate that tbe service of sucb notice is required in any contest of a claim of exemption to personal property. It seems to have been tbe intention of the legislature that tbe written notice to tbe defendant of tbe levy of process upon property which be bad already claimed as exempt should also operate as notice to him of the institution of a contest of bis claim of exemptions. Provision is also made elsewhere for notice to tbe defendant in all cases of tbe levy of a writ of attachment. — Code, § 2937. Whether or not the contest itself should be mentioned in tbe written notice to tbe defendant, it is plain that be is not ‘put to bis defense of bis claim of exemptions against process subsequently issued until be has been notified in writing of tbe levy of sucb process. A person who has duly filed bis declaration claiming personal property as exempt, before tbe levy of process upon it, is entitled to treat tbe filing of sucb declaration as a protection of tbe property therein described against process upon which tbe fact of a waiver of exemption is not indorsed until, in tbe mode prescribed in tbe statute, be is brought into court to defend a contest of bis claim of exemptions. He _ is made a party to tbe contest by tbe service of written notice of tbe levy of the process. The service of sucb notice is tbe mode prescribed by tbe statute of citing tbe defendant to appear and support bis claim of exemption. Tbe provision for giving bim notice is what secures to him the opportunity to be heard upon the question of tbe validity of bis claim. Some sucb provision for notice to tbe defendant is necessary to give tbe statutory proceeding for a contest in sucb a case tbe character of due process of law. — Betancourt v. Eberlin, 91 Ala. 461. At any rate, tbe requirement that notice shall be given is one not to be disregarded.

In the present case, the plaintiffs made the affidavit and *75bond, for a contest in tbe mode prescribed bjr section 2520 of tbe Code, and tbe writ of attachment was levied on February 17th, Í890. But there is nothing to show that the defendants were notified in writing of the levy, or that they had any actual notice thereof. The notice to the defendant H. T. Bledsoe to file an inventory makes no mention of the writ of attachment, and does not state that any.process had been levied. On September 23d, 1890, he waived his right to such notice by appearing and filing his inventory. He was not in default up to that time, because he had not been served with the statutory notice of the levy, and had done nothing to waive such notice. Prior to his voluntary appearance the steps had not been taken to entitle the plaintiff to a judgment on the contest, the contestee not having been brought into court by the service of notice of the levy, which is required by the plain language of the statute. — Code, § 2520; Fears v. Thompson, 82 Ala. 294; Hutcheson v. Powell, 92 Ala. 619. On the plaintiff’s written demand, a defendant who has been made a party to a contest of his claim of exemption is required, under the penalty of having a judgment by default rendered against him in the contest, to file an inventory of his personal property. — Code, § 2525. But a notice merely to file such inventory is insufficient to supply the want of the notice which is required to make the defendant a party to the contest. The law informs him that until he has received written notice of the levy of process he is not called upon to defend a contest of his previously filed declaration and claim of exemption, and until he has received such notice he can safely ignore the plaintiff’s proceedings, so far as they purport to affect property already claimed as exempt. TÍntil the defendant became a party to the contest he was not bound to comply with the plaintiff’s written demand for an inventory. He did not become a party to the contest until his voluntary appearance therein at the September term of the Circuit Court. He filed the inventory on the day of his voluntary appearance. The trial court erred in striking the inventory from the files, on the ground that it had not been filed within the first three days of the previous term. The defendant had not then been put in the position to be bound by the plaintiff’s demand ; when he voluntary appeared he was not in default in any way, and it was incumbent on the plaintiffs to tender an issue on the claim. It was error to render judgment by default thereon against the defendant, because he was not then in default, as he had not been made a party to the contest in the mode prescribed by the statute. He had done *76nothing to relieve the plaintiffs of the duty of tendering an issue on tbe claim of exemptions. An issue should have been formed and tried as directed by the statute. — Code, § 2526.

If there has been a waiver of exemption as to the kind of property on which the levy is sought to be made, the indorsement of that fact on the process is a pre-requisite of the right to make the levy. — Code, § 2519. If there has been no such waiver, and the right to make the levy is based upon the institution of a contest in the mode provided by section 2520 of the Code, there is no requirement that the fact of such contest shall be indorsed on the process. The defendant H. T. Bledsoe, in his plea in abatement, and in his motion to dismiss the levy of the attachment, seems to have erroneously assumed that the statute requires the fact of contest to be indorsed on the process. No such indorsement was required, and the absence thereof did not affect the validity of the- levy. The indorsement made by the plaintiffs upon the writ at the time of the trial was useless and ineffectual. No injury resulted therefrom to the appellant.

The appellant’s plea in abatement and his motion to dismiss the levy of the attachment were both put upon the untenable ground, that there should have been an indorsement on the writ of the fact that the claim of exemptions was contested; and for this reason both the plea and the motion were properly rejected. After these objections were disposed of, the appellant interposed a plea in bar to the complaint, without suggesting the objection that he had not been served with written notice of the levy of the attachment. He thereby waived the right to such notice, and a personal judgment could then be rendered against him, though he had not been served with any legal process at all. After a voluntary appearance and the rendition of a personal judgment thereon, the objection because of the failure to give written notice of the levy of the writ of attachment was too late. That objection was cured by the voluntary appearance of the defendant.

So far as the proceeding in the main case was concerned, we' have discovered no error prejudicial to the appellant. The judgment in that branch of the case is affirmed. For the reason above stated the judgment rendered on the contest of the claim of exemptions is reversed, and that case is remanded.

Beversed and remanded.