McAbee v. Parker , 83 Ala. 169 ( 1887 )

SOMERVILLE, J.

— The appellee was plaintiff in the court below, in a contest inaugurated under the statute to try the appellant’s right of exemption to certain premises claimed as a homestead, and was permitted by the court, against objection, to take a nonsuit in the action, without a trial on the merits. It is insisted by the appellant, that the court erred in allowing a judgment of nonsuit. The correctness of this contention depends upon the proper construction of section 2838 of the Code of 1876, which provides for the framing and trial of such issues. After providing for the inauguration of such a contest by a prescribed affidavit on the part of the plaintiff in execution, the statute requires that an issue shall be made up and tried as in other causes, at the first term of the court to which the process, and other papers, are returnable. — Code, 1876, 2830, 2834, 2838. It is then declared as follows, by section 2838, the one under consideration; “If the plaintiff shall fail to appear to support his contestation, judgment shall be rendered against him, to the effect that the property in contest is not liable to sale under his execution, or other process, and releasing such property from any levy thereon, and' against the plaintiff for the costs of such levy and contestation.” The same section provides, also, that “if the defendant fail to appear to support his claim, judgment shall be rendered thereon by default against him, condemning the property in contest, and ordering its sale if necessary, and against the defendant for costs.” — Code, 1876, § 2838.

The record shows that the defendant’s claim of exemption was lodged with the sheriff, who gave the plaintiff’s attorney the three days written notice of its filing required by section 2834 of the Code. It is further shown that the appellee, Parker, properly inaugurated a contest, in the -manner provided by section 2830; but the sheriff failed to give the defendant any notice of such contest, as it was his duty to do under the provisions of section 2836, and that the papers were returned to %e court without such. notice. The case was, therefore, not at issue. No trial of it could be forced against the appellant’s (the defendant’s) consent waiving such want of notice. This he refused to waive, by declining to appear, except to ask for judgment against the plaintiff declaring the property in contest not to be liable to sale, and releasing it from the levy, and for costs of the proceeding. Under the circumstances, the court did not err in overruling this motion, and in allowing the nonsuit. The general rule is, that the plaintiff in every civil proceeding, in the absence of some statutory prohibition to the contrary, may dismiss or abandon his action by nonsuit, or otherwise, at his own cost, at any time before verdict. — Griel v. Loftin, 65 Ala. 591. The most that can be insisted, with any degree of plausibility, is, that where a contest of exemption like the present has been inaugurated under the statute, and the issue has been made up, after proper notice given, and the case being ready for trial on the pleadings, if the plaintiff then fail to appear in support of his contestation, a judgment shall be rendered adjudging the property in contest not liable to sale, and releasing it from the levy, with costs. — Code, § 28B8, supra. The defendant, having declined the wager of forensic battle, can not now complain that the plaintiff consented to his declination by taking a nonsuit. The plaintiff was in court, presumably ready to try the case on its merits. He did not, therefore, fail to appear in support of his contestation, within the meaning of the statute.

We discover no error in the ruling of the court, and the judgment is affirmed.