Street v. Dubose

141 So. 723, 25 Ala. App. 117, 1932 Ala. App. LEXIS 110

• Court: Alabama Court of Appeals
• Decided: March 22, 1932
• Docket: 6 Div. 178.
• Status: Published

Opinion

RICE, J.

We take no notice, on this appeal, of the constitutionality, vel non, of the court from which the case is brought. Gen. Acts Ala. 1931, pp. 621-628.

It appears that the decisive question is as to whether or not J. E. Dubose waived his right to claim as exempt, etc., to him (Code 1923, § 7886), a certain sum. of money left on deposit with Hon. Jas. A. Simpson, in order to procure the release of a garnishment then resting against one of Mr. Simpson’s clients; he being a practicing lawyer.

The effect of the judgment appealed from was to find that said Dubose did not so waive that right.

Code 1923, § 7961, provides the way and manner of evidencing a waiver, of the kind contended for, here, by appellant.

If this way and manner (Code, § 7961) is not exclusive, certainly, we think, is it true that such waiver is never to be implied. Lippman v. First National Bank of Anniston, 120 Ala. 123, 24 So. 581, 74 Am. St. Rep. 28.

So far as we can see — surely, as against the rules which govern us in review, on appeal, the trial being before the court without a jury — the trial court correctly decided the issues.

The judgment appealed from is affirmed.

Affirmed.