99 Ala. 83 | Ala. | 1892
This is a summary proceeding under the statute, instituted by appellant against appellee, and the sureties on his official bond, as sheriff of Jefferson county; the grounds of the motion being that appellee, Smith, as such sheriff, failed to make the money on an execution in his hands in favor of appellant against one W. M. Nalls, which by due diligence he could have made.
Appellant’s attorneys, on placing the execution in the hands of the sheriff, required him to levy the same on certain machinery in Jefferson county as the property of said Nalls. The property being claimed by a third party, the sheriff demanded indemnity from appellant, the plaintiff in the execution, which being given, the levy was duly made. Within the time required by the statute the defendant in execution, W. M. Nalls, filed a claim of exemption with the sheriff, in which he claimed as exempt a debt of one thousand dollars due him by the firm of Nalls & Baker (of which defendant was not a member), secured by lien on the machinery levied on under the execution. The exemption claim described the machinery specifically, giving the value of each separate item, and claimed as exempt whatever interest the defendant in execution had in said property as security for his said debt of one thousand dollars, which claim was duly .verified by defendant’s affidavit and lodged with the officer before a sale of the property. Of the filing of this exemption claim the attorney of the execution creditor was duly notified.
At the time of the levy the sheriff also had in his hands an execution against the same defendant in favor of another judgment creditor, which was levied on the same property, ¿rfter the levy under the execution first above mentioned, and both executions were controlled by the same attorney and levied under his directions. A contest of the exemption
Appellant’s attorneys, before the levy was so discharged by the sheriff, wrote a letter to such sheriff insisting that the claim of exemption was informal and void, and notifying him not to discharge the levy, also informing him of the pendency of certain chancery proceedings, to which the sheriff had been made a party, and in which a restraining order was sought to prevent him from selling the property, and which proceedings, the writer of the letter claimed, created a lien on the property, and'imposed on the sheriff the duty of holding the property subject to the Chancery Court’s decree. This letter is shown to have been duly-mailed, post-paid] but the sheriff testified that he has no recollection of having received or heard of it. It appears from the date to have been mailed at Montgomery to the sheriff at Birmingham on the same day the levy was released. Appellant’s counsel notified appellee to produce the original letter at the trial in this case, and on the failure of appellee so to do, appellant’s counsel offered in evidence a letter-press-copy thereof, to the introduction of which appellees objected, and the objection being sustained by the court, appellant reserved an exception.
It was shown by appellees that the sheriff endeavored to find other property of defendant in his county, but was unable to do so.
Appellant, on the trial, insisted that the claim of exemption was void, and that the sheriff should have disregarded it, and also that the value of the machinery being shown to exceed the amount of the debt claimed as exempt; the sheriff should have sold for such excess; and the charges asked in his favor and refused by the court are based on that contention. The court, at the request of appellees, gave the general charge in their favor,
We discover nothing in the testimony or record to support the contention of appellant's counsel, that the machinery levied on belonged to W. M. Nalls, the defendant in the execution. The mere fact that it was levied on under the execution as his property may have imposed a prima facie liability on the sheriff to the plaintiff in execution for the value of the property, not exceeding the injury the plaintiff might sustain from a discharge of the levy, but in the absence of other proof, we must accept the statement in the exemption claim, which was offered in evidence by appellant himself, that the only claim W. M. Nalls had upon the machinery was as security for his one thousand dollar debt, and this statement overcomes the prima facie liability of the sheriff above mentioned. If the defendant in the execution had any leviable interest in any other property in appellees’ county, the burden was upon appellant to prove
The mere lien on the property in favor of the defendant in execution was not subject to levy and sale under execution, it not being “personal property of the defendant” within the meaning of the statute. — (Code, § 2892.)
The discharge of the levy by the sheriff did'not, therefore, work any harm or injury to the plaintiff in the execution. But, inasmuch as the sheriff had been indemnified by the plaintiff in execution, and who demanded the sale of the property under the execution, the sheriff, by failing to sell, assumed the burden of showing that the property was not subject to the execution, and this it was competent for him to do by showing that some legal restraint was imposed upon the sheriff against the making of such sale. — Matins v. OarpenieA\ 95 Ala. 156; 10 So. Rep. 341. As we have seen, the lien of the defendant in execution upon the property levied on was not subject to levy and sale, but it was property capable of being claimed as exempt within the enlarged meaning of the exemption statute (Code, § 2511), that section having been construed by this court as embracing “everything which is the subject of ownership, not being realty or an interest in realty,” and the claim of exemption filed by the defendant in execution with the sheriff was rightfully interposed and embraced such interest or lien as an incident to the debt it was given to secure. A specification of this lien in the claim of exemption was not a claim of exemption to separate property in addition to the debt, but to that which was a part of the debt itself, or that from which the debt was to be realized.
Upon the filing of this claim of exemption with the sheriff and due notice thereof given to the attorney or the plaintiff in execution, and the failure of the latter to file a contest of the exemption claim within the time prescribed by law, the right and duty of the sheriff to sell under the execution ceased, notwithstanding the indemnity, and it became mandatory upon him by the terms of the statute (Code, § 2521,) to discharge the levy, and deliver the property to the defendant in execution, from whose possession it appears from the testimony it was taken when the levy was made.
In such case the sheriff has no discretion to disregard the claim of exemptions. The law does not invest him with judicial powers which authorize him to determine the legal sufficiency of the claim of exemption; that is to be done upon a contest instituted pursuant to the statute, and where,
The letter written to the sheriff by the attorneys for the plaintiff in execution, forbidding the release of the property from the levy, could have no effect upon the duty of the sheriff in the premises. The law points out the mode by which the plaintiff in execution could have preserved the levy after the filing of the exemption claim and notice thereof to the plaintiff or his attorney, and that is by the contest of such claim duly instituted pursuant to the statute. This mode is exclusive, and the letter by which plaintiff’s attorneys sought to accomplish that purpose, being wholly ineffectual, there was no error in the refusal of the court.to permit its introduction in evidence.—Block v. Bragg, supra.
Without considering specifically the other exceptions, which arise upon the instructions given or refused by the court, it is only necessary to add, the proof fails to show that the defendant in execution had any property in Jeffer-* son county from which appellee Smith, as sheriff of such county, could by due diligence have made the money due on appellant’s execution, and for that reason the general charge was properly given at the request of appellee.—3 Brick. Dig. p. 405, § 22.
There is nothing of which appellant can complain in this court in the failure of the presiding judge to sign his name in full upon the charges marked by him “Given” or “Defused.” It does not appear that the exception on this ground was taken before the jury retired, when the omission might have been supplied, and it does not appear that any injury resulted therefrom to appellant. Mere error without injury will not work a reversal in this court. Furthermore, the exception is “to the action of the court in not writing out his name and attaching thereto the title, Judge,” while the statute
The judgment of the City Court must be affirmed.