Block v. George , 70 Ala. 409 ( 1881 )

BRICKELL, C. J.

The claim of exemption, in writing; and under oath, made by George on the 27th February, 1877, which was lodged witli the sheriff, and of which notice was given the judgment creditor, arrested further proceedings on tlie levy or execution on the lands. 'The.validity of the claim was the subject of contestation, bv the interposition of an affidavit of the' judgment creditor, Ids agent, or attorney, specifying that the contract, on which the judgment was founded, expressed a waiver of exemptions; or a general denial of the validity of the claim ; or that the claim was excessive, or in part invalid. — Godo of 1876. $$ 2828-30. Such affidavit, the judgment creditor must interpose, within teu days after notice of the claim of exemption. — Code of 1876, § 2834. At the first term of the court, to which the process is ■returnable, an issue must be formed, on the claim of exemption and the affidavit of contest, the judgment creditor standing in the relation of plaintiff on the trial of such issue. — Code, § 2838.

The appellant, the judgment creditor, at whose instance the levy was made, failed -witliin ten days after notice of the claim of exemption to interpose an affidavit of contest. During the term of the court to which the execution was returnable, after the lapse of ten days from the time of notice, he did make and file such affidavit, but no issue was formed thereon ; nor does it appear that the appellee had any notice of the tiling of the affidavit, or that any order or proceeding was had, by which a contest, having the elements and form of a pending suit, was introduced into the court, and orders of continuance made. ()n the judgment execution continued to issue, and on the 28th June, 1881, the appellant made another affidavit of contestation, no new or other claim of exemption having been made by the appellee. At the Fall term, .1881, on motion of the appellee, the Circuit Court dismissed the proceedings, rendering judgment sustaining the claim of exemption.

The contestation of a.claim of exemption is strictly statutory and summary. The courts are not. authorized to entertain it, unless the requisitions of the statute, from which authority to entertain it is derived, are strictly pursued. Defects in the proceeding. capable of being cured by amendment, may he waived, if the party having the right, of objection does not in time interpose it, and proceeds without regard to them. It may be, if the creditor, at whose instance 'the levy is' made, fails, for ten days after notice of the claim of exemption, to tile the affidavit of contest, and it was tiled subsequently, if, without objection, the claimant entered into the'eontest, and proceeded therein as if the affidavit had been regularly tiled, all objection to the time of the tiling would he regarded as waived. Or, if the affidavit was tiled, and there was neglect, or failure to form the issue, at the term to which the execution was returnable, and it was, without objection, formed at a subsequent term, the regularity of the proceedings would be unassailable. The questions now presented are wholly different. There has been no waiver of the failure of the creditor to tile the. affidavit within the period prescribed by the statute, without which an issue could not be formed; nor has there been a waiver of the formation of the issue at the return term of the execution. Ten days having elapsed after notice of the claim of exemption had been given,, in the absence of, and without notice to the appellee, the affidavit of contest was tiled. The failure to tile the affidavit within ten days, unexplained, is equivalent, to. a declination of the contest of the claim of exemption, and the court was without power, if it had made the effort, to -force the claimant into the contest subsequently. The purpose of the statute is t.o afford a speedy and summary remedy for the determination of the matters arising on claims of exemption to which it' refers, that the rights of. creditors may be ascertained, and, if they have not rights, that the claimant 'may be quieted in title and possession. Either party, pursuing the statutory. remedy, and claiming its benefits,' must, be diligent — must observe the re-' quirements of the statute.

We do not find any error in the proceedings of the Circuit Court, and its judgment is affirmed.