Ex parte Haralson & Co.

75 Ala. 543 | Ala. | 1883

STONE, J.

These cases are so connected, and dependent one upon the other, that we will consider them together.

These cases arose out of a contested claim of exemption, which had been interposed under section 2834, Code of 1876. Haralson & Co. and other creditors had sued out attachments against one Farrell, which were levied on a stock of merchandise. Farrell thereupon interposed his claim in writing under oath, that one thousand dollars in value of the merchandise was exempt to him, he being a resident of the State. This claim was lodged with the sheriff, who notified plaintiffs in the several attachments. Plaintiffs thereupon filed their affidavit, through their attorney, stating that “ in the belief of affiant said claim of exemption is [was] invalid entirely.” Defendant in the attachments executed no bonds, as authorized by sections 2836 and 2942 of the Code,' but the several plaintiffs in attachment executed bonds, which were approved by the sheriff, who thereupon turned over the goods, so claimed and contested, to the attaching plaintiffs. The goods were then placed by plaintiffs in the hands of their attorneys, who, at the time these proceedings were had in the circuit court, still held them, partly in money and partly in merchandise.

Motion was made in the court below to quash the bonds plaintiffs had given under sections 2836, 2943 of the Code. The bonds were defective in more respects than one, and the circuit court rightly quashed them. Plaintiffs in the attach-nieuts thereupon moved the court for leave to file new and sufficiént bonds. This motion the court overruled, and ordered that the claimant of the exemptions be allowed five days within which to give bond, and take possession of the property in controversy; and failing, that then plaintiffs in attachment be allowed five days within which to give bonds. The court further ordered that the attorneys of plaintiffs pay and turn over the property and money deposited with them to the clerk of the court, to abide further orders to be made in the premises.

It is argued here, against .the relief. prayed, that the sheriff did not allow to the claimant of exemptions five days within which to give bond, after he was notified his claim had been contested ; and that the plaintiffs’ informal bonds were given and approved, in less than five days after such notice. — Code, 1876, § 2836. In this way it is .urged that the claimant of exemptions has never had the five days in which to make bonds, allowed him by the statute. It is a sufficient answer to this, that the motion to quash was in writing, stating several grounds, and this is not one of them. Had this ground existed in fact, it is but reasonable to infer it would have been assigned. The attention of the court was not called to it, and we can not presume it could not have been met if raised. The affidavit of contest was filed with the clerk November 26, and the bond of plaintiff was approved December 5th. This is nine days.' It was the duty of the sheriff to give notice within three days after contest filed. If he did this, there were then at least six days before plaintiffs bond was accepted and approved. It is urged, however, that the sheriff’s return proves when he gave the notice, and that it was not until December 3rd. We think it doubtful whether this date was intended to note when he served the iiotice, or when he returned the papers to the clerk. The silence of the motion on this subject tends to confirm the latter view. The objection is not well taken.

Our whole judicial' system has been framed with a view to meting out substantial justice, .to the discouragement of mere technical objections, which only tend to thwart its wholesome aims. To this end, we have, from an early day, encouraged and built up a generous system of amendments, so liberally applied that, with few exceptions, errors even in orignal process can be amended, and in mesne, or intermediary proceedings, we know no boundary to the right to correct errors and remedy mistakes, when the ends of justicp, or an early trial on the merits will be promoted thereby.—Drinkwater v. Holliday, 11 Ala. 134; Taylor v. Br. Bank at Huntsville, 14 Ala. 633; Ex parte Morgan, 30 Ala. 51; Webb v. Kelly, 37 Ala. 333. The circuit court should have allowed the contesting plaintiffs to give new and sufficient bonds.

There was appearance and answer for the presiding judge in the court, below, and a common desire expressed that final orders be now made in these causes.

On the petition' of Haralson & Co. et al, it is ordered and adjudged that the writ of mandamus issue to the judge presiding in Perry circuit court, commanding and requiring him to vacate and set aside the order made, granting to Farrell, claimant of exemption, leave to execute a bond under §§ 2836, 2942 of the Oode, and to make an order allowing Haralson & Co. to file an amended bond under §§ 2836, 2943 of the Code, in the penalty and condition prescribed by law. This order applies to each of the petitioning attachment creditors.

Cn the petition of Kelly & Howze, it is ordered and adjudged that a like writ.issue to said presiding judge, commanding and requiring him to set aside and vacate the order heretofore made, directing them to pay and turn over to the clerk of the court the money and merchandise claimed as exempt, a contest of which claim is now pending.