Sherry v. Brown , 66 Ala. 51 ( 1880 )

SOMERYILLE, J.

-In this case, Brown recovered judgment against Sherry, before a justice’s court, upon which execution was issued, and, in default of personal property, the process was levied by the constable upon certain real estate claimed by Sherry as a homestead, and a return thereof made to the justice, who transmitted all the papers in the case to the ensuing term of the Circuit Court of Madison county, as required by the statute. — Code, 1876, § 3638. Upon the cause coming to be heard, the court, on the motion of the plaintiff, directed a sale of the land for the satisfaction of the judgment. The judgment entry recites, that the proceedings before the justice were regular, and established a judgment against the defendant, issue of execution, and levy on land for want of personal property, and notice thereof, and that no sufficient objection ioas made to the granting of the motion by the court. — Code, § 3640.

After the order of sale was made, the defendant made an affidavit, and interposed a claim of exemption to the property levied on; which was contested by plaintiff in the manner prescribed by section 2830 of the Code, an issue made up, and the process was returned by the sheriff to the Circuit Court. Upon the trial, the court ruled, that the defendant had waived Ms'right of exemption, by failing to file his claim, properly verified by affidavit, with the constable who made the levy, and before the order of sale was granted. The correctnes4gf this ruling is the only question raised for our consideration by the record. '

The Code provides, that “ in no case shall the trial of the right of homestead be had before a judge of probate, or justice of the peace, but, if a contest arise under section 2830, consequent on the levy on lands claimed as homestead, of process returnable to a Probate Court, or justice of the peace, the same shall be returnable to the next term of the Circuit Court of the county, and there tried as in other contests before the court.” — Code, § 2838. A.n issue is required to be made up and tried, as in other cases, at “ the first term of the court to which the process is returnable.” — lb. This is the term to which the justice is required to submit “ all the papers in the cause,” in every instance where there is a levy made on land under execution issued from his court. — Code, § 3638. The Circuit Court is authorized to direct a sale of the land, if “ no sufficient objection is made.” — lb. § 3640. Taking all the sections of the Code in pari materia together, we think the legislative intention can be perfectly harmonized, by so construing them as to require tbe claim of exemption to be presented by way of contest, as sufficient objection to the granting of the order of sale by the court. Tbe affidavit of exemption should have been filed by tbe defendant before tbe justice’s court, and returned to the ensuing term of tbe Circuit Court, with tbe other papers in tbe cause; and the issue should have been then and there made up and tried, before tbe ordey of sale was made. Having failed to do this, tbe opportunity tendered by tbe statute was gone, and tbe right of exemption was waived. Homestead exemptions, as well as exemptions of personal property, have always been construed by our courts as mere personal privileges, which may be, and are held to be waived, unless claimed at tbe time, and in tbe manner prescribed by law.—Martin v. Lile, 63 Ala. 406; Daniels v. Hamilton, 52 Ala. 105; Thompson on Homestead & Ex. § 646; Bell v. Davis, 42 Ala. 460.

We find no error in the rulings of tbe Circuit Court, and tbe judgment is affirmed.