Kimball v. Cunningham Hardware Co.

• Decision Date: 09 May 1918
• Docket Number: 1 Div. 37
• Citation: 201 Ala. 409,78 So. 787
• Parties: KIMBALL v. CUNNINGHAM HARDWARE CO. et al.
• Court: Alabama Supreme Court

78 So. 787

201 Ala. 409

KIMBALL v. CUNNINGHAM HARDWARE CO. et al.

1 Div. 37

Supreme Court of Alabama

May 9, 1918

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Suit by the Cunningham Hardware Company and others against Mary E Kimball. Decree for complainants. From a ruling sustaining complainants' contest of homestead exemption interposed by defendant after levy of execution, defendant appeals. Affirmed.

Frederick G. Bromberg and J. Blocker Thornton, both of Mobile, for appellant.

Inge &amp Kilborn, of Mobile, for appellees.

McCLELLAN J.

The meritorious subject of review on this appeal is the ruling of the judge of the circuit, sitting in equity, in sustaining the complainants' (appellees') contest of homestead exemption interposed by Mrs. Mary E. Kimball after levy thereon of execution issued against Mary E. Kimball individually, under a decree in equity. The circumstances leading up to the decree to enforce which the execution issued are fully stated in the reports of former appeals. Kimball v. Cunningham Hardware Co., 192 Ala. 233, 68 So. 309; s.c., second appeal, 197 Ala. 631, 73 So. 323. Some preliminary questions are pressed upon this court's consideration. They will be first decided.

It is insisted, as upon assignments of error made, that the court erred in its conclusion that the appellant was not a "married woman" within the purview of Code, § 2879, as amended by the act approved September 22, 1915 (Gen. Acts 1915, p. 715); and hence was not entitled to effect her appeal without giving security for costs and without superseding the enforcement of the decree or judgment of which she complains. The action of the court in this regard was inappropriately assigned for error. Johnson v. Ward, 82 Ala. 486, 2 So. 524. That ruling did not touch or relate to the decree brought under review. The appellants' remedy to effect review of that action of the court or judge was petition for the writ of mandamus. Johnson v. Ward, supra. After the court so ruled, the appellant gave security for costs and supersedeas, and the appeal is here.

Mrs. Kimball filed a written request that the contest of her claim of homestead exemption should "be tried by a jury in accordance with the provisions of section 4179 of the Code of 1907." The court denied the request. The cause in which the decree was rendered, to enforce which the execution issued, was a cause in equity, a chancery cause. In such causes the trial of the contest of exemption is made subject, in terms by that section, to the direction of the chancellor; the circuit judge being now substituted for the chancellor. The act approved September 28, 1915 (Gen. Acts 1915, pp. 939-941) has application to civil actions at law and to the trial of misdemeanors, not to equity causes. The act approved September 25, 1915 (Gen. Acts 1915, p. 824) is applicable alone to "civil cases at law." A cause in equity is not a civil cause at law, within any of the Acts of 1915. The distinctive character of chancery or equity causes has not been changed by any of the laws enacted by the Legislature of 1915. To the contrary, the methods and practices prevailing in the courts of chancery at the time of the blending of the courts of law and chancery or equity (Gen. Acts 1915, pp. 279, 598, 608) were expressly preserved and continued (Gen. Acts 1915, pp. 809-814, particularly section 11; Gen. Acts 1915, p. 279 [§ 2], 598). The court correctly denied appellants' request for a trial by jury.

The insistence that all of the judges of the Mobile circuit (three in number), instead of one of them, should have heard and decided the contest of exemption under review is manifestly without merit. Gen. Acts 1915, p. 811, §§ 7, 9, 10. The first cited act applies to the circuit court of Mobile. The affidavit of contest, filed by the attorney for the complainants, of the appellant's claim of homestead exemption conformed to the statute (Code, § 4173), and was not subject to the appellants' demurrer.

The service, on May 31, 1917, of the copy of the interrogatories by the complainants to Mrs. Kimball was effected upon the solicitor who, the record discloses, represented Mrs. Kimball in this claim and contest of homestead exemptions by filing on May 22, 1917 (nine days previously) demurrer in her behalf to the affidavit of contest interposed by the complainants, and who has since continued to represent Mrs. Kimball in the proceeding. The service upon the attorney was effective.

The execution was levied on April 20, 1916. The claim of exemption was made May 5, 1916. The affidavit of contest of the claim was interposed on May 18, 1916, and...