Milligan v. Cox

108 Ala. 497

• Court: Supreme Court of Alabama
• Decided: November 15, 1895
• Status: Published

Opinion

COLEMAN, J.

The appeal is prosecuted from a judgment- of the court, setting aside and annulling a sale by the sheriff, under-an execution, of the-homestead of the appellee.

The motion'of the appellee seems tohave'been seasonably made, and the 'only question is 'Whether the facts sustained the judgment of the cpurt. The lands were levied upon 'by attachment from' the' justice'’s court,' and on appeal to the circuit court, judgment was'rendered ' for the plaintiff for the amount of the dbbt. There was no order of venditioni exponas of the land, asked for or granted. The plaintiff sued out an execution on the judgment, which was levied upon the same land, and by the sheriff sold. After the levy of the attachment and again after the recovery of the judgment and before the levy of the execution, a claim of exemption of the property of the homestead, was filed in the office of the judge of probate of the county, complying with the laws as provided in section 2515 of the Code. The claim as first filed, was lodged with the constable, who levied the attachment. The exemption thus claimed and filed was never contested, nor were any steps taken to contest it, as provided in section 2520 of the Code. In defiance of the claim of exemption declared by the defendant and filed in the office of the probate judge, the appellant had the execution levied and the property sold by the sheriff, and.himself became the purchaser.

There is not the shadow of merit in his contenlion, and the judgment of the circuit court must be affirmed,

Affimed,