Lackland v. Rogers

• Decision Date: 02 February 1897
• Citation: 113 Ala. 529,21 So. 341
• Parties: LACKLAND v. ROGERS.
• Court: Alabama Supreme Court

21 So. 341

113 Ala. 529

LACKLAND v. ROGERS.

Supreme Court of Alabama

February 2, 1897

Appeal from circuit court, Clarke county; John C. Anderson, Judge.

Action by J. T. Lackland against W. J. Rogers. Judgment for plaintiff, and defendant moved for an order setting aside the homestead. From a judgment in favor of defendant, plaintiff appeals. Reversed.

The object of this proceeding was to contest a claim of homestead exemptions, under sections 2521 and 2520 of the Code. The appellant had obtained judgment against the appellee in a justice's court, upon which execution was issued, and, in default of personal property sufficient to satisfy the execution, the process was levied upon certain real estate as the property of appellee. The execution was returned to the justice, who thereupon transmitted all the papers in the cause to the next ensuing term of the circuit court of Clarke county. Said court granted an order for the sale of the lands to satisfy the execution. This proceeding was under Code, § 3359 et seq. The sheriff proceeded to advertise the lands for sale under an alias venditioni exponas, in obedience to said process. Appellee filed with the sheriff an exemption claim claiming the lands as a homestead, and as exempt from sale under said process. The claim was filed after an order of sale was granted by the circuit court, but before sale thereunder. The grounds of the plaintiff's contest were as follows: "(1) The failure of claimant to interpose the claim before an order of sale was granted by the circuit court for the sale of the lands to satisfy the execution. (2) Because of the failure of claimant to file his claim in the circuit court before an order of sale or condemnation was therein rendered he waived his right to claim said property as exempt against said execution." The court refused to give, at the request of the plaintiff, the general affirmative charge in his favor, but gave, at the request of the defendant, the general affirmative charge in his behalf. To each of these rulings the plaintiff separately excepted. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the rulings of the court upon the charges asked.

Lackland & Wilson, for appellant.

McCLELLAN J.

Under statutory provisions having reference to proceedings when an execution from a justice's court is levied on land, and to the time and manner of interposing a claim of exemption...