73 Ala. 548 | Ala. | 1883
— The petitioner, Redd, obtained a judgment against J. R. Mark, and under an execution issued thereon, certain personal property, of value less than one thousand
The record fails to show any reason why the order should not have been granted. No inventory was filed by the claimant, as required by law, and no further time for filing such inventory had been granted by the court. In such case, the plaintiff was not required to tender an issue. — Code, § 2837. H it be supposed that plaintiff was required to give the bond, for which section 2830, subdiv. 3, makes provision, that is an error. That requirement is confined to cases, where the levy proposed to be made is on- property which had been previously .claimed and recorded under sections 2828-9 of the Code.
There are misprints in the chapter of the Code of 1876, relating to property exempt. In section 2834, twelfth line, 2828 should be read 2830. In section 2840, the figures 2823 and 2824, in last line, should be read 2821 and 2822.
Lest this opinion be misunderstood, we will add that no matter under which section of the Code — § 2828 or § 2834 — -the claim of exemption of personal property is asserted, before the plaintiff shall be required to tender, any issue, the defendant or claimant must file an inventory, as provided in section 2837 of the Code. Section 2839 proves that this is a necessary element in every contest over personal property claimed as exempt. The bond, however, required of plaintiff by section 2830, before having property seized which has been claimed under sections 2828-9 of the Code, as we have said, need not be given when the claim is under section 2834. That bond is required to be given before the levy can be made; and if no claim has been made and filed for record, it can not be known, or anticipated that any will be asserted. Such bond has no place for operation, when the claim is under section 2834.
Mandamus is not the remedy in such a case as this. That coercive process is proper, when an inferior court refuses to proceed to judgment, in a case in which the law makes it his duty to act. This court will command the inferior tribunal to proceed to judgment, but will not dictate the judgment he shall render. It compels judgment, but does not control it, when there is another adequate remedy. — State, ex rel. v. Williams,
Mandamus denied.