Emrich v. Gilbert Mfg. Co.

• Decision Date: 12 November 1903
• Citation: Emrich v. Gilbert Mfg. Co., 138 Ala. 316, 35 So. 322 (Ala. 1903)
• Parties: EMRICH v. GILBERT MFG. CO.
• Court: Alabama Supreme Court

35 So. 322

138 Ala. 316

EMRICH v. GILBERT MFG. CO.

Supreme Court of Alabama

November 12, 1903

Appeal from Circuit Court, Mobile County; Wm. S. Anderson, Judge.

Contest between the Gilbert Manufacturing Company and J. Philip Emrich on a claim of homestead exemption made by the latter on the levy of an execution against him in favor of the Gilbert Manufacturing Company.From a judgment in favor of the execution creditor, Emrich appeals.Affirmed.

The appellee, the Gilbert Manufacturing Company, recovered against the appellant, John Philip Emrich, a judgment in the Mobile circuit court for debt, $373.50, and costs, June 21 1898.On June 28, 1898, a certificate of the judgment was filed and registered in the office of the judge of probate of said county, in accordance with section 1920 of the Code of 1896.At that date the defendant, J. P. Emrich, Lula Emrich Gillingham, and Emma Emrich Schumacher owned jointly and equally, as tenants in common, three pieces of property situate in the city of Mobile, to wit, a house and lot on the west side of Scott street, second north of Charleston street the south half of the lot on the west side of Scott street third north of Charleston street, and a lot on the southwest corner of Bayou and Elmira streets, all of which they had inherited from their father.These three co-tenants acquired said property as the only heirs of John P. Emrich, Sr. deceased.Before his death, John P. Emrich, Sr., had conveyed to defendant, John P. Emrich, the north half of the lot on the west side of Scott street, third north of Charleston street; and defendant was then, and is now, living on this north half.Nearly two years after the registration of plaintiff's judgment, to wit, May 14, 1900, these three heirs divided the property, and exchanged deeds, whereby the lot on the west side of Scott street, second north of Charleston street, was conveyed to Mrs. Gillingham, the south half of the lot on the west side of Scott street, third north of Charleston street, was conveyed to defendant, John P Emrich, and the lot at the southwest corner of Bayou and Elmira streets was conveyed to Mrs. Schumacher; the only consideration being the exchange of interests by and between the several co-tenants in the partition.On June 27, 1901, execution was levied upon the south half of the lot situate on the west side of Scott street, third north of Charleston street; this south half of said lot being that which was owned jointly by the three Emrich heirs at the time said judgment was rendered and the certificate registered, and for nearly two years thereafter.Defendant filed with the sheriff his claim of homestead exemption in the whole lot, which included, of course, the south half thereof, upon which the levy had been made.The plaintiff, through one of its attorneys, filed an affidavit of contest of claim of exemptions interposed by the defendant.In this affidavit of contest the affiant stated upon oath that, in his belief, "said claim is invalid, in that it claims the property levied upon as a part of defendant's homestead, and affiant believes that it is not used and occupied as defendant's homestead; further, that, if it is now so used and occupied, that prior to such use it was subject to a lien in behalf of plaintiff's judgment, and is now subject thereto.Affiant further says that he believes that the property described in the claim of exemption exceeds in value two thousand dollars, and that the portion levied upon can be separated from defendant's homestead proper, and is subject to this levy."The defendant moved to quash the execution, and to strike from the file the contest of claim of exemptions, upon the grounds that no such affidavit of contest of the claim of exemptions has been filed by the plaintiff as required by statute, and because the contest does not comply with the requirements of the statute authorizing a contest of the claim of exemptions.Each of these motions was overruled.Thereupon the defendant demurred "to the affidavit filed in this cause by the plaintiff contesting defendant's claim of exemptions," assigning many grounds for said demurrer.This demurrer was overruled.These rulings were had at a term of the court which adjourned on February 1, 1902.On said 1st day of February, 1902, which was the last day of the term of the court, an adjourned term was ordered by the court on account of the congested condition of the docket, and all the causes then pending in said court were continued under a general order of continuance.The adjourned term of the court commenced on February 17, 1902.On February 6, 1902, the defendant filed a written motion for judgment against the plaintiff for the costs of levy and contest, and to have the property levied upon released.This motion, upon being heard at the adjourned term of the court, was overruled.At the adjourned term of the courtthe plaintiff tendered, under the direction of the court, four issues, the substance of which is sufficiently shown in the opinion.The defendant objected to each of the issues tendered by the plaintiff, numbered 1, 3, and 4, separately.The court overruled each objection, and to each of these rulings the defendant duly excepted.The plaintiff introduced evidence tending to show the facts as above set out, and introduced further evidence tending to show that the property claimed by the defendant as a homestead was worth $2,500.The plaintiff also introduced in evidence the judgment recovered by it against the defendant.The defendant objected to the introduction of this judgment in evidence upon the ground that it was immaterial and irrelevant.The plaintiff introduced in evidence the certificate of judgment issued by the clerk of the circuit court of Mobile county, wherein the judgment was recovered, which was filed for record in the office of the judge of probate.It was shown by the testimony of the clerk in the office of the judge of probate that said certificate had been filed in said office, and had been recorded in the book kept for such purposes.Upon the examination of said clerk, it was shown that the certificate which was introduced in evidence was not taken from the office of the judge of probate, and was not on file in that office.Thereupon the defendant moved to exclude the certificate, "because it is shown that it is not a portion of the files of the judge of probate's office."The court overruled this motion, and the defendant duly excepted.The defendant introduced evidence tending to show that he was occupying a lot which had been levied on, together with the adjoining lot, as a homestead, and was so occupying it at the date of the levy of the execution, and that the two lots together, which were occupied by him as a homestead, were not worth exceeding $2,000.Upon the introduction of the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges: "(1) I charge you that, if you believe the evidence, you must find for the plaintiff on the fourth issue in this case.(2) If the jury believe from the evidence that the whole property exceeds $2,000 in value, they will find the second issue for the plaintiff."The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by him: "(1) If the jury believe from all the evidence that the homestead as claimed by the defendant does not exceed in value $2,000, they must find a verdict for the defendant.(2) If the jury believe from all the evidence that the land levied upon by the execution is part of the homestead of the defendant, they must find for the defendant.(3) If the jury believe from all the evidence that the property levied upon was used and occupied as a homestead when the execution in this case was levied, they must find a verdict for the defendant.(4) If the jury believe from all the evidence that the property claimed as exempt does not exced in value $2,000, they must find a verdict for the defendant.(5) If the jury believe all the...