Ex parte Redd

73 Ala. 548

• Court: Supreme Court of Alabama
• Decided: December 15, 1883
• Status: Published

Opinion

STONE, J.-

— The petitioner, Redd, obtained a judgment against J. R. Mark, and under an execution issued thereon, certain personal property, of value less than one thousand -dollars, was levied on as the property of defendant. The defendant had filed no claim to said property, as exempt, under section 2828 of the Code of 1876. After the levy he did file such claim under section 2834 of the Code. At the tidal term the claimant of exemption failed to file an inventory, as provided in section 2837 of the Code; and thereupon the plaintiff moved the court for judgment by .default, declaring the property subject to the process. The court declined to make this order, but made no final disposition of the cause. The present application is for a mandamus, to compel the court below to grant the order moved for.

The record fails to show any reason why the order should not have been granted. No inventory was filed by the claimant, as required by law, and no further time for filing such inventory had been granted by the court. In such case, the plaintiff was not required to tender an issue. — Code, § 2837. H it be supposed that plaintiff was required to give the bond, for which section 2830, subdiv. 3, makes provision, that is an error. That requirement is confined to cases, where the levy proposed to be made is on- property which had been previously .claimed and recorded under sections 2828-9 of the Code.

There are misprints in the chapter of the Code of 1876, relating to property exempt. In section 2834, twelfth line, 2828 should be read 2830. In section 2840, the figures 2823 and 2824, in last line, should be read 2821 and 2822.

Lest this opinion be misunderstood, we will add that no matter under which section of the Code — § 2828 or § 2834 — -the claim of exemption of personal property is asserted, before the plaintiff shall be required to tender, any issue, the defendant or claimant must file an inventory, as provided in section 2837 of the Code. Section 2839 proves that this is a necessary element in every contest over personal property claimed as exempt. The bond, however, required of plaintiff by section 2830, before having property seized which has been claimed under sections 2828-9 of the Code, as we have said, need not be given when the claim is under section 2834. That bond is required to be given before the levy can be made; and if no claim has been made and filed for record, it can not be known, or anticipated that any will be asserted. Such bond has no place for operation, when the claim is under section 2834.

Mandamus is not the remedy in such a case as this. That coercive process is proper, when an inferior court refuses to proceed to judgment, in a case in which the law makes it his duty to act. This court will command the inferior tribunal to proceed to judgment, but will not dictate the judgment he shall render. It compels judgment, but does not control it, when there is another adequate remedy. — State, ex rel. v. Williams, 69 Ala. 311. If the circuit court, on being moved thereto, had refused to render final judgment, the petitioner would have been entitled to this extraordinary remedy. We can not presume-there would have been such refusal. A refusal to render a particular, specified judgment, is not the equivalent of a refusal to render any judgment. . Prom final judgment, when rendered, an appeal lies to this court. Such appeal is a complete and adequate remedy. — 2 Brick. Dig. 240, § 4.

Mandamus denied.