Beckert v. Whitlock

• Decision Date: 12 January 1888
• Citation: 83 Ala. 123,3 So. 545
• Parties: BECKERT v. WHITLOCK.
• Court: Alabama Supreme Court

3 So. 545

83 Ala. 123

BECKERT v. WHITLOCK.

Supreme Court of Alabama

January 12, 1888

Appeal from circuit court, Cullman county.

The appellee, Charles A. Beckert, plaintiff below, filed his affidavit for contest of claim of homestead exemption against defendant, William L. Whitlock. Judgment for plaintiff. Defendant appeals.

Geo. W. Parker and C. T. Hamill, for appellant.

Cofer & Austin, for appellee.

CLOPTON J.

The appellant made, and filed for record in the office of the judge or probate, two declarations in writing, claiming the lot in controversy to be exempted as a homestead from levy and sale under process for collection of debts,-one in December, 1877, and the other in February, 1882. The plaintiff having obtained judgment against the appellant in November, 1881, upon which successive executions had been issued, and returned "No property," his attorney in April, 1884, made and filed in the office of the clerk of the circuit court an affidavit to contest the validity of the claim of exemption.

After a declaration in writing has been made by any resident of this state, stating and describing the property claimed as being exempted, in compliance with the statutory requirements, and he has filed the same for record in the office of the probate court of the county in which the property is situated, the statute prohibits any execution or other process for the collection of debts being levied on such property, unless the plaintiff, his agent or attorney contest the validity of such claim, in whole or in part, in the manner provided. Code, § 2830. The institution of a contest, by making one of the statutory affidavits, is the preliminary step to having the property levied on, when the declaration and claim are filed under section 2828; and, upon a proper affidavit being made it may become the duty of the sheriff to make a levy, but his failure to perform the duty does not disable the plaintiff to maintain the contest. The lien of such process is not thereby destroyed nor impaired. The statute does not expressly provide in what office or with what officer the affidavit shall be filed or lodged; but the implication is that it shall be with the sheriff, whose duty it is to execute the process, and to indorse the substance of the affidavit thereon, when the contest goes to the validity of the claim of exemption in part, or as excessive. The affidavit was filed in the office of the clerk of the circuit court to which the execution was returnable on the same day on which it was made. Notice of the filing of the affidavit was not given to the defendant until May 5, 1884, when a notice signed by the attorney of the plaintiff, was served on him by the sheriff. Whether or not the proceedings in these respects are irregular it is unnecessary to decide; for, if irregular, the irregularities are waived by the subsequent appearance of the defendant in response to the notice, and engaging in a trial of the contest on the merits, without objection for want of notice, so far as the record shows. Gill v. Downs, 26 Ala. 670; Lampley v. Beavers, 25 Ala. 534.

Section 2838 of the Code declares that, "at the first term of the court to which the process is returnable, an issue shall be made up and tried as in other cases; the party at whose instance the levy is made, being the plaintiff in the issue." It is contended that the statute is mandatory and that the court should have stricken the issue tendered by the plaintiff from the files, because not tendered in proper time; no issue having been tendered until November, 1884. After the general assertion as to the term of the court at which the issue shall be made up and tried, the same section prescribes and regulates the mode of proceeding, as follows: "If the plaintiff shall fail to appear to support his contention, judgment shall be rendered against him to the effect that the property in contest is not liable to sale under his execution or other process, and releasing such property from any levy thereon, and against the plaintiff for the costs of such levy and contestation. If the defendant fails to appear to support his claim, judgment shall be rendered thereon by default against him, condemning the property in contest, and ordering its sale, if necessary, and against the defendant for costs. If both parties appear, an issue or issues shall be made up between them, under the direction of the court, to determine whether the property in contest, or any and what part of it, is exempt as claimed." Under the provisions of the statute, the court cannot direct an issue to be made up unless both parties appear. If either fails to appear, the statute declares what shall be the consequence, and no issue is necessary. While the right to the statutory judgment is conferred on the defendant, if the plaintiff...