117 Ala. 599 | Ala. | 1897
When this case was before the court at a former term (Lackland v. Rogers, 113 Ala. 529), relying upon and following Sherry v. Brown, 66 Ala. 51, as explained in Toenes v. Moog, 78 Ala. 558, we held, that when there is a levy of execution issuing on a judgment of a justice of the peace, on land forming the homestead, a claim of exemption must be interposed before the order of sale is granted by the circuit court— otherwise, the right of exemption is waived and lost. It is conceded by the counsel for appellant, that unless there is departure from this conclusion, there must be an affirmance of the judgment of the court below. Whether it is competent for the General Assembly to create a bar to the right of exemption, by prescribing any rule requiring it to be asserted at any time before a sale, or what may be the true construction of the present, when compared with pre-existing statutes, if the question were res integra, we will not now consider. The question involved, relates to a claim of exemption of the homestead, in 'a particular instance only — the levy of an execution issuing on a judgment of a justice of the peace, followed by the grant of an order of sale by the circuit court. The whole procedure informs the defendant that the subjection of the land to the payment of the judgment is the end to be accomplished— and by interposing the claim of exemption, he may defeat it. -Upon a question of this character, there should not be oscillation of judicial decision. Let the judgment be affirmed.
