Rodgers v. Lackland
| Decision Date | 07 April 1898 |
| Citation | 117 Ala. 599,23 So. 489 |
| Parties | RODGERS v. LACKLAND. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Clarke county; John C. Anderson, Judge.
The appellee, J. T. Lackland, obtained a judgment in a justice of the peace court against the appellant, w. J. Rodgers. On this judgment execution was issued, and was levied by the constable upon the homestead of Rodgers, in default of personal property. The execution was returned to the justice with the indorsement of the constable, and the papers were then transmitted to the circuit court. At a subsequent term of the circuit court, Lackland asked for and obtained an order directing a sale of the lands levied upon. After the adjournment of the court, and after the sheriff had advertised the lands, but before the sale, Rodgers filed, in due and proper form, his claim of exemption with the sheriff under section 2521 of the Code of 1886. Thereupon the contest was had, and upon the trial thereof, under the adverse rulings in the circuit court, judgment was rendered in favor of Lackland, the contestant, disallowing the claim of exemptions of W. J. Rodgers. From this decree the present appeal is prosecuted, and the rendition thereof is assigned as error. Affirmed.
Pillans Torrey & Hanaw, for appellant.
Lackland & Wilson, for appellee.
When this case was before the court at a former term ( Lackland v. Rodgers, 113 Ala. 529, 21 So. 341) relying upon and following Sherry v. Brown, 66 Ala 51, as explained in Toenes v. Moog, 78 Ala. 558, we held that when there is a levy of execution issuing on a judgment of a justice of the peace, on land forming the homestead, a claim of exemption must be interposed before the order of sale is granted by the circuit court; otherwise the right of exemption is waived and lost. It is conceded by the counsel for appellant that, unless there is a departure from this conclusion, there must be an affirmance of the judgment of the court below. Whether it is competent for the general assembly to create a bar to the right of exemption, by prescribing any rule requiring it to be asserted at any time before a sale, or what may be the true construction of the present, when compared with pre-existing, statutes, if the question were res integra, we will not now consider. The question involved relates to a claim of exemption of the homestead in a particular instance only,-the levy of an execution issuing on a judgment...
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