McClarin v. Anderson , 104 Ala. 201 ( 1893 )

HARALSON, J.

1. The plaintiff’s judgment was rendered on the 13th May, 1875, in an action in tort, and executions were issued thereon on the 7th June, 1875, on 6th February, 1882, on 23d May, 1885, and on the 17th April, 1887. The judgment was kept alive, and is not now dormant. Two levies were made on the defendant’s land, and twice he interposed his claim of exemption, which plaintiff attempted to contest, each time unsuccessfully.

2. There is nothing in the ground of demurrer, that an administrator of Robert McClarin was not made a party defendant. It is alleged he died insolvent, without leaving anything to be administered on, and 1‘or that reason no administration has ever been taken on his estate. If he had had an administrator, it Avas optional with the complainant to make him a party or not. — Coffey v. Norwood, 81 Ala. 515 ; Handley v. Heflin, 84 Ala. 601.

3. It will appear from the facts of this case, Avhich will be set out in the report of the cause, that the' pláintiff issued an execution on his judgment on the 23d of May, 1885, which was levied on the lands described in his return on said execution ; that on the 3d day of July following, the defendant in execution — respondent’s intestate, Robert McClarin — filed 'under oath with the sheriff his claim of homestead exemption to a part of the lands so levied on, to which there was no contest filed by the plaintiff until the 7th of April, 1887. The case had, meantime, been carried to the Supreme Court, and reversed and remanded, and on its return to the city court, in December, 1886, this contest, on the 7th of April following, was tendered, notice of which was given on the same day to the defendant, who, on the day following, the 8th of April, 1887, filed his demurrer to Said contest, on the ground, that the plaintiff’s affidavit for contesting defendant’s claim of exemption had been filed more than ten days after he had notice of the making and filing of defendant’s claim. On trial of the cause on that demurrer, on the 18th of April, 1887, judgment was rendered for the defendant, the judgment entry reciting that the ‘ ‘parties came 'by their attorneys and plaintiff’s motion to.make up the issues in the contest of the claim of homestead exemption filed by the defendant, coming on to be heard and being heard, and argued by counsel, it is considered by the court, that said motion be refused, and.the defendant’s demurrers to the contest being heard, it is considered by the court that said demurrers be and they are hereby sustained.”

4. The ground for contesting said claim of exemption, as shown in the affidavit for contesting the same, was that the plaintiff’s judgment was rendered in an action of tort. It is well understood that when a demurrer is sustained for some defect in the pleadings, and judgment is not pronounced on the merits of the case, then there has been no judgment on the facts or merits, and consequently the demurrer, which was sustained because of defects in the pleadings, can form no bar to a subsequent action ; but a demurrer, which admits all the facts' which are well pleaded, demands the judgment of law arising out of or on those facts; and when the judgment is pronounced it is conclusive on the parties to determine the litigation between them, as if judgment had been rendered on verdict. — Perkins v. Moore, 16 Ala. 13 ; Hanchey v. Coskrey, 81 Ala. 150; 1 Chit. Pl. 198.

It appears to u's, that the demurrer filed by the defendant to plaintiff’s contest of said claim of a homestead exemption was sustained by the city court, from no defective pleading for the trial of that matter, that the facts upon which the exemption was to be allowed or not were well presented, and that the judgment of the court on the demurrer settled the question of defendant’s exemption in the property claimed, as long as the condition on which it was claimed remained the same. If he should abandon it, or do some act by which he waived or lost the exemption, or it should increase in value, so that he held more than the law allowed him as an exemption, it would be subject to other process. Block v. George, 83 Ala. 184; Smyth on Homestead Exemptions, § 91, and authorities there cited. One of the purposes of the statute is to give stability and security to the claimant in his home, to prevent the annoyance and feeling of insecurity that the issue of repeated executions . on the same judgment would bring, and to afford a speedy and summary remedy for the determination of the matters arising on claims of exemption, to the end that creditors, if they have any rights, may have them ascertained, and if not, that the claimant may be quieted in title and possession. — Block v. George, 70 Ala. 411.

From what has been said, it follows, that the claim of defendant to the homestead exemption, to the extent claimed, was adjudicated by the city court, and was not again liable to a second levy of an execution on the same judgment on the same land, while the conditions and the value of the property remained the same. It is unnecessary to discuss the further attempt to subject the property to this judgment by the issue of the second execution on it on the 17th of April, 1887. That matter seems never to have received the consideration and judgment-of the city court; but the judgment that it did afterwards' render, as touching the second execution, was that the defendant having filed his declaration of . exemption in the office of the probate' judge 'of ' Mobile county, ;on the 16 day of'June, 1885,"the levy, of date May 19th," 1887,' of the execution issued the 17th of April preceding was made by the sheriff without the plaintiff having filed with him a contest under oath, of said declaration of exemption — filed in the probate office — as required by l.aw, (Code, § 2520), and the proposed contest was, therefore, dismissed. That left the matter, as to this suit, where it stood, at and since the rendition of said judgment on demurrer by the city court, of date 18th of April, 1887.

It is scarcely necessary to say, that the allegations of the bill, .make the deeds of conveyance referred to- voluntary, fraudulent and void as to complainant, to the extent he has an interest in and right to condemn any part- of said lands to the satisfaction of his judgmeut. Bibb v. Freeman, 59 Ala. 612 ; Early v. Owens, 68 Ala. 174; Seals v. Robinson, 75 Ala. 369 ; Dickson v. McLarney, 97 Ala. 383.

The demurrer went to the whole bill. The claim of exemption extended to only a part of the land sued on. The demurrer and the motion to dismiss for want of equity were each properly overruled for this reason.

Affirmed.