First Nat. Bank v. Lippman

• Decision Date: 16 April 1901
• Citation: 30 So. 19,129 Ala. 608
• Parties: FIRST NAT. BANK OF ANNISTON v. LIPPMAN.
• Court: Alabama Supreme Court

30 So. 19

129 Ala. 608

FIRST NAT. BANK OF ANNISTON v. LIPPMAN.

Supreme Court of Alabama

April 16, 1901

Appeal from city court of Anniston; James W. Lapsley, Judge.

Action by Regina Lippman against the First National Bank of Anniston. Judgment for plaintiff. Defendant appeals. Affirmed.

The evidence in the case disclosed the following facts: In August, 1897, the First National Bank of Anniston commenced a suit by attachment against Regina Lippman and there was an indorsement on said writ of attachment that as to personal property the defendant in said suit had waived her right of exemptions. Said judgment was levied on a stock of goods as the property of the defendant in said suit. After the levy of said attachment, Regina Lippman, on September 13, 1897, filed with the sheriff a claim of exemptions in writing verified by oath, to a part of the property levied on Attached to this claim there was an itemized statement of the property, in which the defendant described the goods claimed, as they were described in the inventory made by the sheriff; and she stated under oath that she had no other property, etc. (Code 1886, § 2521), "other than the stock of goods, fixtures and interest in a certain lease in a storehouse in which she did business in Anniston, Alabama, all of which said property has been levied on and is now in the possession of the sheriff of Calhoun county, Alabama, under attachment in favor of [naming the parties suing out the attachment] against the affiant. Reference is here made by the sheriff of said county to the property levied upon in said cause." In this claim of exemptions the defendant in attachment did not state the date that the debt due the First National Bank was contracted. On the next day, September 14, 1897, she amended said claim by making affidavit that the debt sued on by plaintiff was contracted after April 23, 1873. No notice appears to have been given by the sheriff to the First National Bank of Anniston, the plaintiff in attachment, of the defendant's claim of exemptions so filed with him nor was there any contest nor any proceeding touching her said claim. In the attachment suit, Regina Lippman, the defendant, filed a plea denying the waiver of exemptions; but on the trial of the cause in the city court of Anniston, the court adjudged that said plea was not sustained and rendered judgment on September 21, 1897, in favor of the First National Bank of Anniston against said Lippman, which judgment contained a recital that as against it there was no claim of exemptions as to any personal property of said defendant. In this judgment it was further ordered "that the property heretofore levied on under the issue in this case be sold for the satisfaction of this judgment, and that a venditioni exponas issue therefor." On the same day this judgment was rendered, a writ of venditioni exponas was issued and on October 4, 1897, the sheriff sold the goods levied on under said attachment, included in which were the goods claimed as exempt to Mrs. Regina Lippman, the defendant in said suit. On October 5, 1897, there was paid to the attorney of the First National Bank, by order of the sheriff $553.94, out of the proceeds from the sale of the property levied on, which sum was the full amount of said judgment with interest to date.

After the rendition of the judgment in the city court and after the sale of the property claimed as exempt, Mrs. Lippman, the defendant in said suit, appealed from said judgment to the supreme court of Alabama, giving a bond for the security of the costs of the appeal. On November 5, 1898, the supreme court modified the judgment of the city court by striking out therefrom the declaration that there was a waiver of exemptions as to personal property and that as against said judgment there were no exemptions as to any of the personal property of the defendant; and as thus modified the judgment was affirmed.

After the rendition of the judgment in the supreme court, the present suit was instituted by Mrs. Regina Lippman, the defendant in the attachment suit, against the First National Bank of Anniston, to recover the amount paid to the First National Bank through its attorney out of the proceeds of the sale of the stock of goods levied upon under the attachment and which goods were claimed by Mrs. Regina Lippman as exempt to her.

During the trial of the present case, A. H. Shepperd, who was the clerk of the city court of Anniston, was introduced as a witness, who testified to the judgment rendered in the attachment suit by the First National Bank of Anniston against Lippman and to the appeal from said judgment. Thereupon the plaintiff offered in evidence and read to the court the judgment rendered in said court and offered in evidence the appeal bond which was given by the defendant in said cause, for the purpose of prosecuting an appeal from said judgment to the supreme court. The plaintiff then offered in evidence a certificate of the clerk of the supreme court, showing the action of the supreme court at its November term, 1898, in the case between Regina Lippman and the First National Bank. A copy of this certificate was attached to the bill of exceptions as an exhibit and was in words and figures as follows:

"The State of Alabama. Judicial Department. The Supreme Court of Alabama. November Term, 1897. To the Clerk of the City Court of Anniston, Calhoun County. Greeting: Whereas the record and proceedings of the city court of Anniston of said county in a certain cause lately pending in said court between R. Lippman, appellant, and the First National Bank of Anniston, appellee, wherein by said court, at the _____ term, 189-, it was considered adversely to said appellant were brought before our supreme court, by appeal taken, pursuant to law, on behalf of said appellant.

"Now, therefore, it is hereby certified, that is was thereupon considered by our supreme court, on the 5th day of Nov., 1898, that in the record and proceedings of the city court there is no error, except in that the judgment contains clause setting forth that the defendant waived her exemptions. It is therefore considered that the judgment of the city court be here corrected by striking out the clause therein setting forth that the defendant waived her exemptions, so that the same shall read, 'Came the parties by attorney, and this cause being submitted to the court after due and legal proof shown, it is considered by the court that the plaintiff have and recover of the defendant the sum of five hundred and fifty-two 31/100 ($552.31) dollars, together with the costs in this behalf expended, for which let execution issue,' and that as corrected the said judgment be in all things affirmed. It is also considered that the appellee pay the costs accruing on said appeal in this court and in the court below.

"Witness, Sterling A. Wood, Clerk of the Supreme Court of Alabama, at the Capitol, this the 5th day of Nov., 1898.

"[Signed] Sterling A. Wood, Clerk of the Supreme Court of Alabama."

To the introduction in evidence of this certificate the defendant objected upon the following grounds: (1) It does not appear that said certificate related to the same cause as the judgment from which the appeal was taken, and upon which the clerk of the city court of Anniston paid the attorney of the First National Bank of Anniston the amount of the judgment recovered by it in said court against Mrs. Lippman. (2) Said certificate is not a certified transcript of the record and proceedings in the supreme court. (3) Said certificate does not state the date, number and character of the judgment appealed from, nor does it name the...