First National Bank of Anniston v. Lippman

129 Ala. 608 | Ala. | 1900

HARALSON, J.

¡The certificate of the clerk of the Supreme Oou-rt. showing the 'action of this court at its November term, 1898,. in the 'case between R. Lippman and The First National Bank of Anniston, was properly admitted in evidence. — 'Code, § 3860, subdiv. 5, and § 3861. It is therein provided, that “such ’certificate shall be evidence in any cause in any court in this State of the iacts set forth as herein provided.” Formerly such a certificate could be looked to only as authorizing the lower court, to proceed to a new trial, in the cause to which it related, and was not competent evidence of a reversal of the cause.—Dothard v. Sheid, 69 Ala. 135. The sections of the Code referred to were adopted to correct this rule, and to dispense with the expense of a transcript of the records of this court properly exemplified, to prove the matters of which the certificate is now made competent evidence.

The third and fourth assignments of error cannot be sustained. It was competent to show by the witness •Sheppard, the identity of the cause decided in the Supreme.Court with the attachment suit between the same parties, in the city court of Anniston. The questions propounded to Ms witness, the clerk of the court, as to there- being any other ease between these parties in said 'court, besides the one appealed from as 'Shown by the appeal bond, and on which plaintiff’s attorney received $553.94, was not liable to the objections interposed to it, and was properly allowed.—Bessemer L. & I. Co. v. Jenkins, 111 Ala. 137.

1). C. Blackwell testified that he was -present at the sale made by the sheriff of the stock of goods known as the R. Lippman stock in October, 1897, and that the total amount realized therefrom was $1,602. To the question calling for the amount in money the stock brought at the sale, the defendant objected, that there was higher and better evidence of the fact. It was not denied .that the proof was relevant. If Blackwell knew the fact he anight'well state it. What amount the goods 'brought at the sale was not a question at issue, and the fact of what they did bring, which the witness was asked to state, was a- relevant, collateral fact to the main issues in the case.

The plaintiff, — as inquired by section 2521 of the Code of 1886, operativo then, and now section 2047 of the Code of 185)6, — after'the .levy on her stock of goods by the sheriff, who took them into his possession, and prior to the sale, filed with the officer making the levy a claim in writing verified by oath, to such part of the property levied on which she claimed as exempt. She gave an itemized list of the property, with the Amines annexed, in account form, aggregating $999.94. The stock of -goods of the defendant levied on by the sheriff avus taken into his possession, and as the evidence tends to show, defendant had no access to them. The sheriff made an inventory of them, and the defendant described the goods claimed as they were described in the inventory of the sheriff. This Avas altogether-sufficient.—Pinkus v. Bamberger, 99 Ala. 266. Her affidavit attached to this inventory of goods which she claimed as execpt, seems to be in substantial compliance with said section of the Code. She also stated, in further compliance lA-ith said section, that she filed therewith a statement of the personal property, dioses in action and money, with the. value and location thereof, as required by the provisions of section 2525 of the. Code; and this statement made under oath, seems also to be in 'substantial compliance with the statute. 'Said section 2521 of the Code of 1886 while it gives the defendant the right or privilege of claiming exemptions, imposes no obligation on him, except in the manner of presenting his claim, if he should make it. When filed Avith the sheriff, who has made a' levy, it requires such officer, Avitliin three days thereafter, to give to the plaintiff, his agent or attorney, written notice of the filing of the claim, who has the privilege of 'contesting the same. It is also to be observed, that under section 2525 of the Code of 1886, — 2051 of Code of .1896,- — ¡the defendant is not required to give the value of property owned by him and not claimed as exempt, except on the Avritten demand of the plaintiff. In this case, there was no such demand, but still the defendant as above stated, substantially complied with the law in that respect, as though plaintiff had made demand therefor. This it may be presumed she did out of abundant caution.

Thu claim of exemption as first, made, failed to state when defendant’s debt accrned; but on the next day, defendant, amended her claim by filing with the sheriff an amendment, by adding thereto the statement, that the debt sued on by plaintiff was contracted after the 23d day of April, 1873. It was entirely competent for defendant to thus amend her claim, and as amended, we fail to see the validity of the objections made to its introduction in evidence, (Block v. George, 83 Ala. 178, 185; Block v. Bragg, (58 Ala. 291); and if the claim a:s lodged with the. sheriff was defective in any material aspect, this fact did not render it void, hut was sufficient to put on plaintiff, if informed of it, the duty of contestation, since it was amendable on the trial in the court from which the process issued.—Straughn v. Richards, 121 Ala. 611.

Neither the sheriff nor the plaintiff paid any attention, so far as appears, to the claim of exemptions thus interposed by the defendant. She did all she 'was required to do, and her property, claimed to he exempt, was sold, notwithstanding, and the -debt of plaintiff: was paid out of the proceeds. As, we have seen, it was not the duty of defendant, Mrs. Lippman, to notify plaintiff, the 'bank, of the filing of her claim, but it was a duty the sheriff owed the hank to do so, and failing, if damage- thereby came to the hank, it is the sheriff’s fault and not the defendant’s; for which he is answerable, if to any one, to the hank. ■

The -money paid to the plaintiff out of the property claimed as exempt, to 'which it has shown no right, and which c,x equo at bono 'belongs to Mrs. Lippman, she had a right to recover it in this action.—Lanford v. Lee, 119 Ala. 248; Dupuy v. Roebuck, 7 Ala. 484; Williams v. Simmons, 22 Ala. 425; Ewing v. Peck, 26 Ala. 413; Town Council v. Burnett, 34 Ala. 407; Marks v. Cowles, 61 Ala. 302.

If there was illegal evidence -admitted on the trial, the other -un-eo-ntradicted evidence is sufficient to support the finding and judgment of the court.

Affirmed.