Kennedy v. Smith

• Decision Date: 03 November 1892
• Citation: 11 So. 665,99 Ala. 83
• Parties: KENNEDY v. SMITH, SHERIFF, ET AL.
• Court: Alabama Supreme Court

11 So. 665

99 Ala. 83

KENNEDY v. SMITH, SHERIFF, ET AL.

Supreme Court of Alabama

November 3, 1892

Appeal from city court of Montgomery; T. M. ARRINGTON, Judge.

Proceedings under the statute by Absalom M. Kennedy against Joseph S Smith, sheriff, and others, for failure of the sheriff to execute a writ with diligence. Judgment for defendants, and plaintiff appeals. Affirmed.

Richardson & Reese, for appellant.

Tompkins & Troy and John A. Elmore, for appellees.

THORINGTON J.

This is a summary proceeding under the statute, instituted by appellant against appellee, and the sureties on his official bond, as sheriff of Jefferson county; the grounds of the motion being that appellee Smith, as such sheriff, failed to make the money on an execution in his hands in favor of appellant against one W. M. Nalls, which by due diligence he could have made. Appellant's attorney, on placing the execution in the hands of the sheriff, required him to levy the same on certain machinery in Jefferson county as the property of said Nalls. The property being claimed by a third party, the sheriff demanded indemnity from appellant, the plaintiff in the execution, which being given, the levy was duly made. Within the time required by the statute, the defendant in execution, W. M. Nalls, filed a claim of exemption with the sheriff, in which he claimed as exemption a debt of $1,000 due him by the firm of Nalls & Baker, (of which defendant was not a member,) secured by lien on the machinery levied on under the execution. The exemption claim described the machinery specifically, giving the value of each separate item, and claimed as exempt whatever interest the defendant in execution had in said property as security for his said debt of $1,000, which claim was duly verified by defendant's affidavit, and lodged with the officer before a sale of the property. Of the filing of this exemption claim the attorney of the execution creditor was duly notified. At the time of the levy the sheriff also had in his hands an execution against the same defendant in favor of another judgment creditor, which was levied on the same property after the levy under the execution first above mentioned, and which executions were controlled by the same attorney and levied under his directions. A contest of the exemption claim was duly filed by the attorney for the plaintiff in the second execution, but no contest was filed in the case in which appellant is the plaintiff in execution. After the lapse of 10 days from the date of the levy under appellant's execution, the sheriff released the levy, and delivered the property levied on to the defendant in execution. In his return to the city court of Montgomery whence the execution issued, it is stated that a contest was filed in that case, and that neither defendant nor plaintiff having given bond, as they were severally authorized by the statute to do, the levy was discharged by the sheriff, and the property delivered to defendant in execution; but the bill of exceptions shows that no affidavit of contest was in fact filed in this case. Appellant's attorneys, before the levy was so discharged by the sheriff, wrote a letter to such sheriff insisting that the claim of exemption was informal and void, and notifying him not to discharge the levy; also informing him of the pendency of certain chancery proceedings to which the sheriff had been made a party, and in which a restraining order was sought to prevent him from selling the property, and which proceedings the writer of the letter claimed created a lien on the property, and imposed on the sheriff the duty of holding the property subject to the chancery court's decree. This letter is shown to have been duly mailed, postpaid, but the sheriff testifies he has no recollection of having received or heard of it. It appears from its date to have been mailed at Montgomery to the sheriff at Birmingham on the same day the levy was released. Appellant's counsel notified appellees to produce the original letter at the trial in this case, and, on the failure of appellees so to do, appellant's counsel offered in evidence a letterpress copy thereof, to the introduction of which appellees objected, and, the objection being sustained by the court, appellant reserved an exception. It was shown by appellees that the sheriff endeavored to find other property of defendant in his county, but was unable to do so. Appellant on the trial insisted that the claim of exemption was void, and that the sheriff should have disregarded it, and also that, the value of the machinery being shown to exceed the amount of the debt claimed as exempt, the sheriff should have sold for such excess; and the charges asked in his favor and refused by the court are based on that contention. The court, at the request of appellees, gave the general charge in their favor.

It has often been decided by this court that the exemption laws being founded in a spirit of humanity, are to be liberally construed, and that the words "personal property," as used in those laws, have a comprehensive signification, and that they embrace everything which is the subject of ownership, not being realty or an interest in realty. Enzor v. Hurt, 76 Ala. 595. The debt due to the defendant in execution from Nalls & Baker for $1,000 was personal property, within the meaning of section 2511 of the Code, ^[1] and subject to the defendant's claim of exemption. That this debt was secured by a lien on personal property worth more than $1,000 did not affect the defendant's right to claim it as exempt. The lien itself is neither a jus ad rem nor a jus in re. It is neither a right of property in the thing, nor a right of action for the thing. It necessarily supposes the property to be in some other person, and not in him who sets up the right. The fact, therefore, that the defendant in the execution claimed, in addition to...