Fears v. Thompson

• Decision Date: 28 July 1887
• Citation: Fears v. Thompson, 82 Ala. 294, 2 So. 719 (Ala. 1887)
• Parties: FEARS v. THOMPSON.
• Court: Alabama Supreme Court

2 So. 719

82 Ala. 294

FEARS v. THOMPSON.

Supreme Court of Alabama

July 28, 1887

Appeal from circuit court, Chambers county.

Attachment sued out by J. A. Thompson against Warren Fears, on November 11, 1886, for "the sum of eight hundred dollars" for rent and advances. Neither the attachment affidavit bond, nor writ contain any statement showing a waiver of exemptions. The return of the sheriff shows: "Executed this twelfth day of November, A. D. 1886, by levying this writ on [stating articles levied on;]" and that the defendant had personal notice of the levy of the attachment. The complaint claims "three hundred and thirty and 14-100 dollars, due by promissory note made by defendant April 25, 1886, payable to plaintiff, October 1, 1886, in which note defendant waives his right to exemptions as to personal property." The judgment, after the usual form of judgments by default, recites in conclusion: "And it appearing to the court that the note upon which this judgment is founded, contained a waiver as to personal property, under the constitution and laws of the state of Alabama, and that the clerk of this court will indorse the same upon any execution that may issue upon this judgment, and that no exemptions be allowed the defendant." The defendant appeals, assigning as error the rendering of the judgment by default without the notice required by law, and the other matters noted in the opinion.

N.H. Denson, for appellant.

J. R. Dowdell, contra.

CLOPTON J.

The first error assigned is that the judgment by default was prematurely rendered; the objection being that it does not affirmatively appear that the defendant had notice in writing of the levy of the attachment. The return of the sheriff is "that the defendant had personal notice of the levy of this attachment." On the presumption that sworn public officers discharge their duties in the manner prescribed by law, the return implies that notice in writing was given by the sheriff; otherwise, the return is untrue, for verbal notice is not the statutory mode of notice. The presumption being in favor of the verity of correctness of the return, it is prima facie sufficient to support the judgment by default. Mayfield v. Allen, Minor (Ala.) 274; McAbee v. Parker, 78 Ala. 573. A variance between the amount of the debt claimed in the affidavit for the attachment, and the amount claimed in the complaint, must be taken advantage of in the trial court...