Straughn v. Richards

121 Ala. 611 | Ala. | 1898

SHARPE, J.

— Unless tbe case, be one in which tbe right of exemption does not exist, a claim of exemptions made in due timé when not frivolous or wanting in tbe essentials, of a bona fide claim cannot be lawfully ignored. When so made, mere informalities or defects in the .claim, which might be fatal on objection made in tbe court having jurisdiction of the cause, will not justify the levying officer in assuming its invalidity or in disregarding . it by proceeding to sell the property claimed. In such case, the sufficiency of tbe claim becomes a judicial question which tbe officer is without power to determine, and which must be referred to tbe court' by a contest in the mode, prescribed by tbe statute.-Kennedy v. Smith, 99 Ala. 83; McLaren v. Anderson, 81 Ala. 106; Block v. Bragg, 68 Ala. 291; Code § 2047.

The claim in question as presented to the constable shows a definite claim to the lumber in controversy in substantial compliance with the statutory requirements. Code § § 2041-2047. The defect in failing to show that the debt was contracted during the existence of the law creating the exemption was amendable in the discretion of the court, and was not such as to influence the action of the constable.—Block v. Bragg, supra.

Having presented the claim to the constable, the property so claimed was thereby protected from sale until the claim was successfully contested. The defendant was not placed in default by the act of the constable in returning to him the claim with the statement that he would have nothing more to do with the matter. The failure of the officer to do his duty in respect of retaining the claim and bringing it to the notice of the plaintiff may have deprived the defendant of the right to a release of the property until the plaintiff was given the opportunity for ten days to contest, but the effect of the claim was not destroyed thereby.'

The sale upon which the plaintiff bases his right to recover was unauthorized and conveyed to him no title. Theré was no error in giving the charge requested- by defendant.

Affirmed.