Fears v. Thompson

82 Ala. 294 | Ala. | 1886

CLOPTON, J.

— 1. The first error assigned is, that tbe judgment by default was prematurely rendered ; the objection being, that it does uot affirmatively appear that the defendant had notice in writing of the levy of the attachment. The return of the sheriff is, “ that the- defendant, had personal notice of the levy of this attachment.” On the .presumption, that sworn public officers discharge their duties in the manner prescribed by law, the return implies that notice in writing was given by the sheriff; otherwise, the return is untrue, for verbal notice is not the statutory mode of notice. The presumption being in' favor of the verity or correctness of the return, it is prima facie sufficient to support the judgment by default. — Mayfield v. Allen, Minor (Ala.) 274; McAbee v. Parker, 78 Ala. 573.

2. A variance between the amount of the debt claimed in the affidavit for the attachment, and the amount claimed in the complaint, must be taken advantage of in the trial court. The objection can not be made on appeal for the first time. McAbee v. Parker, supra.

3. The judgment recites a waiver, of exemptions, and orders the clerk to indorse the same on any execution that may be issued. In all suits upon an instrument in which the exemptions are waived, the complaint must contain an averment of such waiver; and when a writ of attachment is sued out for the collection of any note, upon or in reference to which such exemptions have been waived, the officer issuing the writ must indorse the fact thereon, having first satisfied himself by evidence that a waiver of exemptions has been made; and must require the party suing out the writ of • attachment to make affidavit that the exemption has been waived, which shall be filed with the papers in the cause, and becomes apart thereof. — Code, of 1876, §§ 2849, 2850. The defendant has the right, under the statute, to controvert only the fact of waiver ; and if the issue, is found in his favor, the plaintiff may, nevertheless, have judgment for his debt and the costs.- — Goetter v. Pickett, 61 Ala. 387. The design of the statute is, to provide the mode by which the claim of the waiver of exemptions may be regularly and appropriately presented in the pleadings, so that issue thereon may be joined, and the defendant have opportunity to appear and contest it. The recital of such waiver in the judgment-entry, and the indorsement of the same on any execution issued, are of statutory origin and authority, dependent on the statutory indorsement on the writ. Without such antecedent indorsement, there is no legal presentation of the claim of waiver which the defendant is required to answer, or on which the court is authorized to embody in a judgment by default a statement or recital of such waiver. A complaint-containing the averment, filed at the return term of the attachment, of which defendant has no-notice,' is not, in the absence of the indorsement on the writ, a compliance, with the statutory requirements.

The judgment is reversed, and a judgment here rendered, omitting the clause relating to- the waiver of exemptions. Appellee will pay the costs of appeal.