Smith v. Smith

75 So. 955, 200 Ala. 197, 1917 Ala. LEXIS 373

• Court: Supreme Court of Alabama
• Decided: May 24, 1917
• Docket: 8 Div. 883.
• Status: Published

Opinions

The appellant did not file his claim of exemptions in the office of the judge of probate before the levy of the execution as provided by section 4168 of the Code of 1907. Therefore, in order to assert the same, after the levy and before the sale, he had to file the same under section 4174 of the Code with the sheriff. The record conclusively shows that the claim of exemptions was not filed in the office of the probate judge until after the levy, and was not filed with the sheriff as required by section 4174. Therefore the appellant lost his right to claim his exemptions after the sale as he attempted to do by the petition to the chancery court. Scheuer Bro. v. King, 100 Ala. 238, 13 So. 912. It is true that the petition in one place recites that the claim was filed before the levy, but considering it in its entirety and in connection with the exhibits thereto, it conclusively appears that the claim was not filed until after the levy. Indeed, counsel do not insist or even suggest that the claim was filed before the levy, but argue the case upon the theory that it was not filed until after the levy.

The decree of the chancery court is affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN, SAYRE, SOMERVILLE, GARDNER, and THOMAS, JJ., concur. MAYFIELD, J., dissents.

Statement of Facts.