Weinstein v. Yielding Bros. & Co.

50 So. 123 | Ala. | 1909

ANDERSON, J.

The purpose of allowing the plaintiff to demand an inventory of the defendant, upon the contest of a claim of exemptions, is to prevent the defendant, while claiming the property levied upon as exempt, from secreting other' personal property, money, or choses in action subject to his debts, and which may be reached by appropriate legal process. — Decatur Co. v. Deford, 93 Ala. 347, 9 South. 454. If the defendant has no personal property, money, choses in action, etc., other than what has been levied upon, he can file no inventory, and, when he meets the demand of the plaintiff by a sworn denial in writing that he has none, he can do no more. The law does not require the impossible, and a man cannot give an inventory of property when he has none. Nor does the law contemplate an inventory alone of what property was levied upon, as this is in the claim of exemptions, and is doubtless inventoried by the officer malting the levy. If the defendant’s denial be untrue, the plaintiff can take issue thereupon, and, if found agaiust the defendant, section 4184, Code 1907, provides for a deduction of same from the amount of exemptions to’which the defendant would'be entitled.

It is true that section 4178, Code 1907, requires the court to render a judgment for the plaintiff, if the defendant fails to file the inventory, ‘‘unless good and sufficient cause be shown to the contrary.” We cannot conceive of a better cause for the failure to file said inventory than the sworn response of the defendant that he has nothing to 1 inventory. The trial court erred jin striking defendant’s answer to plaintiff’s demand, and in rendering judgment by default for the plaintiffs; and the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, G. J., and McClellan and Mayfield, JJ., Concur.