Bailey v. D.R. Dunlap Mercantile Co.

• Decision Date: 18 November 1903
• Citation: 35 So. 451,138 Ala. 415
• Parties: BAILEY v. D. R. DUNLAP MERCANTILE CO.
• Court: Alabama Supreme Court

35 So. 451

138 Ala. 415

BAILEY v. D. R. DUNLAP MERCANTILE CO.

Supreme Court of Alabama

November 18, 1903

Appeal from Circuit Court, Monroe County; Jno.C. Anderson, Judge.

Suit by attachment by the D. R. Dunlap Mercantile Company against Bailey & Remley.From a judgment denying his claim of homestead exemptions, defendantJames R. Bailey appeals.Reversed.

The proceedings in this case were had upon the contest of a claim of homestead exemptions.The suit was instituted by the issuance of an attachment at the instance of the D. R. Dunlap Mercantile Company against the firm of Bailey & Remley, of which firm J. R. Bailey, the appellant, was a member.The attachment was levied upon 80 acres of land, and to the land so levied upon J. R. Bailey filed his claim of homestead exemptions with the sheriff, and also filed his claim in the office of the judge of probate of Marengo county.Upon the filing of this claim of homestead exemptions, the plaintiff filed an affidavit of contest, and, upon the contest so commenced, issue was made up under an order of the court, and the proceedings in the present case were had upon the issue of contest so formed.The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.During the trial of the contest the plaintiff offered in evidence the affidavit and bond for attachment, the writ of attachment and the return of the levy by the sheriff thereon, the complaint in the original suit, and the judgment thereon.The defendant separately objected to the introduction of each one of said papers, except the writ of attachment and the indorsement and the levy thereon.The court overruled each of said objections, and the defendant separately excepted to each of said rulings.

Upon the introduction of all the evidence the court, at the request of the plaintiff, instructed the jury that if they believed the evidence "they must find for the contestant, or plaintiff, the D. R. Dunlap Mercantile Company, as to the land purchased by J. R. Bailey from W. W Costello," describing the said lands.The defendant duly excepted to the giving of this charge, and also separately excepted to the refusal of the court to give the several charges requested by him.It is not, however, necessary to set out these charges at length.The jury returned a verdict finding the issue in favor of the plaintiff as to the lands purchased by the defendant from Costello, and judgment was rendered accordingly.The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Miller & Miller, for appellant.

TYSON J.

Contest of a homestead exemption.Under the statutethe plaintiffs(contestants) must sustain the burden of proving that the lands levied upon are subject to the levy, or, if a homestead, that its value exceeds $2,000.The institution of the suit is the levy, in which the plaintiff is the actor.Section 2052,Code 1896;McCrary v. Chase,71 Ala 540;Kolsky v. Loveman,97 Ala. 543, 12 So. 720.

The single issue presented by this contest is whether the land levied upon, at the date of the levy, was the homestead of the defendant.The onus upon the trial was, as we have said upon the plaintiffs(contestants) to show that it was not.

The writ of attachment was sued out on the 5th day of December 1901, and levied upon the lands in...