Block v. Bragg

68 Ala. 291 | Ala. | 1880

BBICKELL, O. J.

After the levy of the execution, the defendant claimed the lands levied on as exempt, by a writing under oath. It is not stated expressly, that notice of the claim was given the plaintiff, but notice must be inferred from the fact, that the claim was contested by the plaintiff, by his making affidavit of its invalidity, and from the fact that notice does not seem to have been in the Circuit Court denied. It is the purpose of the statutes to avoid sales of property, real or personal, under judicial process, embarrassed by, or subject to claim of exemption. Such a sale would most often result in the sacrifice of the property, and open the way to vexatious litigation. To avoid these evils, a speedy method of testing the validity of the claim of exemption is provided, the initiatory step in which is a verified claim in writing by the party asserting the exemption. "When the claim is interposed, and notice of it is given the opposite party, if within ten days he does not it writing and under oath contest it, the levy is discharged.—Code of 1876, § 2834. Until the contest is decided, though the lien on the property is preserved, the officer making the levy is prohibited from proceeding to sell.—Code of 1876, § 2835.

It is not the province of the officer to pass upon the sufficiency of the claim of exemption, or of the affidavit of contest. If insufficient, they would be amendable in' the court from wbicb the process issued, and to that tribunal their sufficiency must be referred. The claim of exemption is insufficient in failing to aver when the debt was contracted, on which the judgment was rendered, so that from it could be ascertained the law regulating the exemption.—Randolph v. Little, 62 Ala. 396. But the sheriff could not pass on its insufficiency; his duty was to give notice of it to the plaintiff in execution. The notice having been given, the plaintiff must have contested the claim, and if he made the contest, the duty of the appellee was a return of the papers to the Circuit Court, where, on proper issue, a trial of the validity of the claim of exemption could have been obtained. From the record it is apparent, that the plaintiff in execution failed, within the time prescribed, to contest the claim of exemption, in which event, it was the duty of the appellee, as sheriff, to discharge the levy; or if he made the contest, that it was undetermined, and until it was determined, the appellee was prohibited from selling the lands. In either alternative, there was no ground for the present proceeding; the appellee was not in default; and if there be error in the rulings of the Circuit Court, to which exceptions were taken, they were not of injury to the appellant and not available for a reversal.

Affirmed.