Tonsmire v. Buckland

• Decision Date: 29 November 1889
• Citation: 88 Ala. 312,6 So. 904
• Parties: TONSMIRE ET AL. v. BUCKLAND.
• Court: Alabama Supreme Court

6 So. 904

88 Ala. 312

TONSMIRE ET AL. v. BUCKLAND.

Supreme Court of Alabama

November 29, 1889

Appeal from circuit court, Mobile county; WILLIAM E. CLARKE, Judge.

The appellants, Tonsmire & Craft, obtained a judgment against the defendant, E. E. Buckland, on the 11th day of May, 1886, for the sum of $113.44, and the costs of suit. On the 8th day of March, 1889, the appellants, plaintiffs below, made an affidavit, and had a writ of garnishment issued on this judgment, citing the Mobile & Ohio Railroad Company to answer as garnishee. On the 11th of May, 1889, the said garnishee in response to the service of said writ of garnishment answered that it was indebted to the defendant in the sum of $187.50. On the 13th day of May, 1889, the defendant made an affidavit of exemption, and filed the same with the clerk of the circuit court. The affidavit recites that the affiant "hereby makes known and declares under oath that he has selected and claimed as exempted to him, under the constitution and laws of the state of Alabama, the following described real and personal property, to-wit: Affiant says that he is not possessed of any real property whatsoever that he is possessed of the following personal property to-wit: household furniture, valued at one hundred and five dollars, kitchen furniture, valued at twenty-five dollars, wearing apparel of himself and family, valued at seventy-five dollars,-all of said property being situated in the house of George Keihl, on the south side of Charleston street, one west of Marine street, in the city and county of Mobile, state of Alabama; and he also selects and claims as exempted to him, as aforesaid, the sum of two hundred and twenty-five dollars in the hands of third persons, to whom the defendant has loaned it, and the sum of one hundred and eighty-seven and 50-100 dollars, wages due him by the Mobile & Ohio Railroad Company, now in the possession of Henry Tacon," etc. This was the whole of the claiming clause of the affidavit. There was no notice given to the appellants, plaintiffs below, of the filing of this claim of exemptions. On the 24th day of May, 1889, the plaintiffs made and filed an affidavit of contest, on the ground that the claim of exemptions was invalid entirely. After the filing of said contest, but on the same day, (the 24th of May, 1889,) the plaintiffs filed a written demand upon the defendant, requiring him to file a "full and complete inventory of all your personal property in the manner required by law." This written demand was duly served on the defendant. Upon the hearing of the cause, the plaintiff moved the court to render a judgment by default against the defendant, and in favor of the plaintiffs, "because said plaintiffs had filed and served upon the defendant on the 24th day of May, 1889, a written demand for an itemized inventory of defendant's personal property as provided by law in such cases, and that said defendant had failed to furnish or file such inventory, *** and because said defendant furnished no good and sufficient cause for not filing or furnishing said inventory." The court refused this motion, and the plaintiffs duly excepted. As is shown by the bill of exceptions, upon the plaintiffs declining to proceed further the defendant moved the discharge of the garnishee. The plaintiffs objected to this motion; but the court overruled the objection, and granted the motion, discharging the garnishee, and rendered judgment thereon. From the order of the court overruling their objection to defendant's motion to discharge the garnishee, and from the judgment thereon, plaintiffs appeal.

W. E. Richardson, for appellants.

Russell & Boone, for appellee.

STONE C.J.

The mode of claiming exemptions, and of contesting the same, although intended to be harmonious as far as practicable, is nevertheless somewhat varied, and shaded by the nature of the proceedings or process under which the condemnation is sought. The statutes contain no special provisions for such claim or contest in the chancery court. Nevertheless, the right being clear and of constitutional guaranty, chancery grants relief according to its own peculiar methods. Zelnicker v. Brigham, 74 Ala. 598; Seals v. Pheiffer, 84 Ala. 359, 4 South. Rep. 207; Collier v. Wood, 85 Ala. 91, 4 South. Rep. 840; Thompson v. Sheppard, 85 Ala. 611, 5 South. Rep. 334. So, in common-law proceedings, varying forms are given for the assertion and contest of the claim. Not to mention the special provisions applicable to cases which are in the probate courts, and in the justices' courts, the following differences will be found, when the proceedings are in the court of superior jurisdiction:

First. When a declaration or claim of exemptions has been made, and filed and recorded in the probate court, under sections 2515 to 2518, inclusive, of the Code of 1886, no levy can be made until certain preliminary steps are taken, and those preliminary steps of themselves inaugurate a contest. The steps are an affidavit and bond, to be filed with the officer holding the process. There is an exception to this principle. If there is indorsed on the process the fact that there has been a waiver of exemption as to the kind of property on which the levy is sought to be made, then affidavit and bond need not precede the levy. Code, § 2519.

Second. When a case arises in which no declaration of claim has been previously made, filed, and recorded. Code, 1886, § 2521. To claims thus asserted, being made after levy, there is and can be no contest until notice thereof has been given to the plaintiff, his agent or attorney. The contest is then inaugurated by the requisite affidavit made by the plaintiff, etc., and filed with the officer making the levy. No bond is required when the contest is under this section. When claim of exemption is asserted under this section, (2521,) if the levy is on personal property, the defendant must file with his claim "a full and complete inventory, duly verified by oath, of all his personal property, except the wearing apparel, portraits, pictures, and books specifically exempted from levy and sale, with the value and location of each item of such property, and of all money belonging to him, whether in his possession, or held by others for him, and of all debts and choses in action belonging to him, or in which he is beneficially interested, with the value of each of them." Code 1886, §§ 2521, 2525.

It would seem that when the claim of exemption is asserted under section 2521, such claim is not well and legally made, unless it is accompanied by the inventory,-substantially stated above,-as required by section 2525. Yet, according to the section last named, "on any contest of a claim of exemption to personal property, on the plaintiff's written demand, made at any time before the first day of the term of the court to which the process is returned, the defendant claiming the exemption shall, within the first three days of the term, file a full and complete inventory," the required contents of which we have already stated. Was it expected that in contests arising under section 2521 two inventories shall be filed? The solution will probably be found in the fact that the last-named clause of section 2521-the clause which...