CLOPTON, J.
— Tbe appellant made, and filed for record in tbe office of tbe judge of probate, two declarations in writing, claiming tbe lot in controversy to be exempted as a homestead from levy and sale under process for collection of debts — one in December, 1877, and tbe other in February, 1882. Tbe plaintiff having obtained judgment against the appellant in November, 1881, upon which successive executions bad been issued and returned “no property,” bis attorney, in April, 1884, made and filed in tbe office of tbe clerk of tbe Circuit Court an affidavit to contest tbe validity of the claim of exemption. After a declaration in writing has been made by any resident of this State, stating and describing tbe property claimed as being exempted, in compliance with tbe statutory requirements, and has filed tbe same for record in tbe office of tbe Probate Court of tbe county in which tbe property is situated, tbe statute prohibits any execution,-or other process for tbe collection of debts, being levied on such property, unless tbe plaintiff, bis agent or attorney, contest tbe validity of such claim, in whole or in part; in tbe manner provided. — Code, § 2830. Tbe institution of a contest, by making one of tbe statutory affidavits, is tbe preliminary step to having tbe property levied on, when the declaration and claim are filed under section 2828; and upon a proper affidavit being made, it may become tbe duty of the- sheriff to make a levy, but bis failure to perform tbe duty does not disable tbe plaintiff to maintain tbe contest. Tbe lien of such process is not thereby destroyed nor impaired.
The statute does not expressly provide in, what office, or with what officer, tbe affidavit shall be filed*or lodged; but tbe implication is tbat it shall be with tbe sheriff, whose duty it is to execute tbe process, and to indorse tbe substance of tbe affidavit thereon, when tbe contest goes to tbe validity of tbe claim of exemption in part, or as excessive. Tbe affidavit was filed in tbe office of tbe clerk of tbe Circuit Court to which tbe execution was returnable, on tbe same [129]*129day on which, it was made. Notice of the filing of the affidavit was not given to the defendant until May 5,1884, when a notice signed by the attorney of the plaintiff was served on him by the sheriff. Whether or not the proceedings in these respects are irregular, it is unnecessary to decide; for, if irregular, the irregularities are waived by the subsequent appearance of the defendant in response to the notice, and engaging in a trial of the contest on the merits, without objection for want of notice, so far as the record shows. — Gill v. Downs, 26 Ala. 670; Lampley v. Beavers, 25 Ala. 534.
Section 2838 of the Code declares, that “at the first term of the court to which the process is returnable, an issue shall be made up and tried as in other cases, the party at whose instance the levy is made being the plaintiff in the issue.” It is contended that the statute is mandatory, and that the court should have stricken the issue tendered by the plaintiff from the files, because not tendered in proper time, no issue having been tendered until November, 1884. After the general assertion as to the term of the court at which the issue shall be made up and tried, the same section prescribes and regulates the mode of proceeding, as follows: “If the plaintiff shall fail to appear to support his contention, 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. If the defendant fails 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. If both parties appear, an issue or issues shall be made up between them, under the direction of the court, to determine whether the property in contest, or any and what part of it, is exempt as claimed.”
Under the provisions of the statute, the court can not direct an issue to be made up, unless both parties appear. If either fails to appear, the statute declares what shall be the consequence, and no issue is necessary. While the right to the statutory judgment is conferred on the defendant, if the plaintiff fails to appear, the court is not bound, ex mero motu, to render it in the absence of the defendant. He must become the movant. The purpose of the statute is to furnish a speedy and summary remedy for the determination of such contests, and its effect is to make [130]*130them triable at tbe first term of tbe court; but it was not intended tbat the plaintiff, in order to avoid an abandonment or declination of tbe contest, should tender an issue at sucb term, wben tbe defendant did not appear so as to move for judgment against-him. Neither party appeared at tbe Spring term, 188é, and no action was taken in respect to tbe contest. At tbe succeeding Eall term, tbe plaintiff tendered an issue, but tbe defendant did not appear. At each of these terms, and at tbe Spring term, 1885, tbe case was continued under tbe general order. On October 30, 1885, tbe defend- . ant appeared, and made a motion to strike from tbe files tbe issue tendered by tbe plaintiff in November, 1881, on tbe grouhds, tbat it was not filed and tendered in tbe time required, and tbat no affidavit to contest tbe claim of exemption bad ever been made and filed as required. In this condition of tbe contest, tbe court bad tbe discretionary power to direct an issue to be made up at tbe subsequent term at which both parties for tbe first time appeared, neither party having, at a previous term, moved for judgment against tbe other. To construe tbe statute as absolutely requiring tbe issue to be tendered at tbe first term, would be to disregard one of its express provisions, and in conflict with tbe construction given to similar provisions in other statutes in reference to tbe time in which pleas must be filed. — Russell v. State, 53 Ala. 366.
Tbe form of tbe issue is a matter largely in tbe sound discretion of tbe court, under whose direction it is made up. It is not intended to embarrass tbe proceeding by formal pleading; and an issue is sufficient, if broad enough to admit any competent evidence tending to show whether tbe property in contest, or any and what part of it, is exempt as claimed. — Plant. & Mer. Bank v. Willis, 5 Ala. 770; Lehman, Durr & Co. v. Warren & Burch, 53 Ala. 535. Tbe affidavit of contestation affirms, tbat tbe claim of exemption is invalid entirely, and tbat tbe defendant bad removed from tbe lot since tbe declarations and claims were made and filed for record. While it may contain some immaterial statements, it is a substantial compliance with tbe statute, and sufficient to authorize tbe court to entertain tbe contest. Wben tbe parties do not agree as to tbe form of tbe issue, tbe court should dictate' tbe terms. Tbe issue, styled in tbe record tbe “amended issue,” was practically made up under tbe direction of tbe court, though sucb directions consisted of rulings on a demurrer to tbe issue [131]*131originally tendered, and though such issue is not an appropiate subject of demurrer. — Plant. & Mer. Bank v. Willis, supra. The issues thus made up are sufficiently broad to allow the admission of any evidence relating to the validity of the claim of exemption at the time the contest was inaugurated, and at the time the lien of plaintiff’s execution attached.
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CLOPTON, J.
— Tbe appellant made, and filed for record in tbe office of tbe judge of probate, two declarations in writing, claiming tbe lot in controversy to be exempted as a homestead from levy and sale under process for collection of debts — one in December, 1877, and tbe other in February, 1882. Tbe plaintiff having obtained judgment against the appellant in November, 1881, upon which successive executions bad been issued and returned “no property,” bis attorney, in April, 1884, made and filed in tbe office of tbe clerk of tbe Circuit Court an affidavit to contest tbe validity of the claim of exemption. After a declaration in writing has been made by any resident of this State, stating and describing tbe property claimed as being exempted, in compliance with tbe statutory requirements, and has filed tbe same for record in tbe office of tbe Probate Court of tbe county in which tbe property is situated, tbe statute prohibits any execution,-or other process for tbe collection of debts, being levied on such property, unless tbe plaintiff, bis agent or attorney, contest tbe validity of such claim, in whole or in part; in tbe manner provided. — Code, § 2830. Tbe institution of a contest, by making one of tbe statutory affidavits, is tbe preliminary step to having tbe property levied on, when the declaration and claim are filed under section 2828; and upon a proper affidavit being made, it may become tbe duty of the- sheriff to make a levy, but bis failure to perform tbe duty does not disable tbe plaintiff to maintain tbe contest. Tbe lien of such process is not thereby destroyed nor impaired.
The statute does not expressly provide in, what office, or with what officer, tbe affidavit shall be filed*or lodged; but tbe implication is tbat it shall be with tbe sheriff, whose duty it is to execute tbe process, and to indorse tbe substance of tbe affidavit thereon, when tbe contest goes to tbe validity of tbe claim of exemption in part, or as excessive. Tbe affidavit was filed in tbe office of tbe clerk of tbe Circuit Court to which tbe execution was returnable, on tbe same [129]*129day on which, it was made. Notice of the filing of the affidavit was not given to the defendant until May 5,1884, when a notice signed by the attorney of the plaintiff was served on him by the sheriff. Whether or not the proceedings in these respects are irregular, it is unnecessary to decide; for, if irregular, the irregularities are waived by the subsequent appearance of the defendant in response to the notice, and engaging in a trial of the contest on the merits, without objection for want of notice, so far as the record shows. — Gill v. Downs, 26 Ala. 670; Lampley v. Beavers, 25 Ala. 534.
Section 2838 of the Code declares, that “at the first term of the court to which the process is returnable, an issue shall be made up and tried as in other cases, the party at whose instance the levy is made being the plaintiff in the issue.” It is contended that the statute is mandatory, and that the court should have stricken the issue tendered by the plaintiff from the files, because not tendered in proper time, no issue having been tendered until November, 1884. After the general assertion as to the term of the court at which the issue shall be made up and tried, the same section prescribes and regulates the mode of proceeding, as follows: “If the plaintiff shall fail to appear to support his contention, 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. If the defendant fails 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. If both parties appear, an issue or issues shall be made up between them, under the direction of the court, to determine whether the property in contest, or any and what part of it, is exempt as claimed.”
Under the provisions of the statute, the court can not direct an issue to be made up, unless both parties appear. If either fails to appear, the statute declares what shall be the consequence, and no issue is necessary. While the right to the statutory judgment is conferred on the defendant, if the plaintiff fails to appear, the court is not bound, ex mero motu, to render it in the absence of the defendant. He must become the movant. The purpose of the statute is to furnish a speedy and summary remedy for the determination of such contests, and its effect is to make [130]*130them triable at tbe first term of tbe court; but it was not intended tbat the plaintiff, in order to avoid an abandonment or declination of tbe contest, should tender an issue at sucb term, wben tbe defendant did not appear so as to move for judgment against-him. Neither party appeared at tbe Spring term, 188é, and no action was taken in respect to tbe contest. At tbe succeeding Eall term, tbe plaintiff tendered an issue, but tbe defendant did not appear. At each of these terms, and at tbe Spring term, 1885, tbe case was continued under tbe general order. On October 30, 1885, tbe defend- . ant appeared, and made a motion to strike from tbe files tbe issue tendered by tbe plaintiff in November, 1881, on tbe grouhds, tbat it was not filed and tendered in tbe time required, and tbat no affidavit to contest tbe claim of exemption bad ever been made and filed as required. In this condition of tbe contest, tbe court bad tbe discretionary power to direct an issue to be made up at tbe subsequent term at which both parties for tbe first time appeared, neither party having, at a previous term, moved for judgment against tbe other. To construe tbe statute as absolutely requiring tbe issue to be tendered at tbe first term, would be to disregard one of its express provisions, and in conflict with tbe construction given to similar provisions in other statutes in reference to tbe time in which pleas must be filed. — Russell v. State, 53 Ala. 366.
Tbe form of tbe issue is a matter largely in tbe sound discretion of tbe court, under whose direction it is made up. It is not intended to embarrass tbe proceeding by formal pleading; and an issue is sufficient, if broad enough to admit any competent evidence tending to show whether tbe property in contest, or any and what part of it, is exempt as claimed. — Plant. & Mer. Bank v. Willis, 5 Ala. 770; Lehman, Durr & Co. v. Warren & Burch, 53 Ala. 535. Tbe affidavit of contestation affirms, tbat tbe claim of exemption is invalid entirely, and tbat tbe defendant bad removed from tbe lot since tbe declarations and claims were made and filed for record. While it may contain some immaterial statements, it is a substantial compliance with tbe statute, and sufficient to authorize tbe court to entertain tbe contest. Wben tbe parties do not agree as to tbe form of tbe issue, tbe court should dictate' tbe terms. Tbe issue, styled in tbe record tbe “amended issue,” was practically made up under tbe direction of tbe court, though sucb directions consisted of rulings on a demurrer to tbe issue [131]*131originally tendered, and though such issue is not an appropiate subject of demurrer. — Plant. & Mer. Bank v. Willis, supra. The issues thus made up are sufficiently broad to allow the admission of any evidence relating to the validity of the claim of exemption at the time the contest was inaugurated, and at the time the lien of plaintiff’s execution attached.
The defendant can not complain that he was notified, by the terms of the issue, that the plaintiff controverted the validity of the exemption, if originally valid, on the affirmation of the defendant’s removal and abandonment of the premises as a homestead. The general statutory rule is, that actual occupancy, possession of the premises as a home, when a lien upon it would attach if not so occupied, is an essential element of the right of homestead exemption. "When a declaration and claim are made and filed as provided by section 2828, a temporary quitting, or leasing the premises, for a period of not more than twelve months at any one time, is not to be deemed an abandonment, which without the statute would be the consequence. — Code, § 2843; Scaife v. Argall, 74 Ala. 473. The filing of the declaration and claim may be prima facie evidence, but is not conclusive of the animus revertendi. Notwithstanding this, the defendant may have quitted and leased with the intention of not returning within the statutory period. If such was his intention, the right of homestead exemption terminated when he quit the actual occupancy, The animus revertendi does not follow as a conclusion of law, merely from the facts, that the defendant made and filed a declaration in February, 1882; that he rented the premises by the month; and that he kept a part of his furniture and effects thereon, up to October, 1882, when he sold the lot. The intention with which the defendant quitted the premises is an inference to be drawn by the jury from all the facts and circumstances proved. The defendant was not entitled to the affirmative charge.
The charges asked by the defendant, as.to the effect of the sale and conveyance of the lot by him, were abstract. Whether or not the title thereby conveyed is Superior to the lien of the plaintiff, is not involved in the issues on this contest; and the judgment rendered is not binding, nor conclusive on the vendee. There are some irregularities in the proceedings,-but they are not prejudicial to the defendant.
Affirmed.