Wagnon v. Keenan

77 Ala. 519

Opinion

CLOPTON, J.'

The waiver of of exemptions in the bond sued on extends, in terms, to real and personal property. As a waiver of the homestead, it is inoperative, by reason of the mandatory provision of the statute, that when the waiver relates to realty, it shall be made by a separate instrument in writing. This, however, does not render the entire waiver invalid and inoperative. If the waiver clause in the bond can not operate to the extent designed by the parties, it must be made to operate as far as possible to effectuate their intention. The clause is operative as a waiver of the exemptions of personal property. Neely v. Henry, 63 Ala. 261; Terrell v. Hurst, 76 Ala. 588. The proper judgment-entry in such case will be found in Brown v. Leitch, 60 Ala. 313.

The appeal must be dismissed. The verdict of the jury is sent up with the record, but there is no judgment rendered by the Circuit Court thereon. The plaintiff, in whose favor the verdict was returned, can not proceed, until he has, by motion to tlie Circuit Court, judgment rendered on the verdict, nunc fro tunc. — Hall v. Cannon, 9 Por. 274. There is no judgment which we can affirm, reverse, or amend without a reversal; and we are compelled to dismiss the appeal, ex mero motu.

Appeal dismissed. .