Gamble v. Reynolds

JUDGE, J. The appellee was entitled to have exempted from levy and sale under execution, “ one work horse or mule, or one pair of oxen.” It does not appear that he [238] bad a horse, nor a pair of oxen, but be bad owned two mules, one of wbicb be disposed of before tbe levy, in payment of executions against him from a justice’s court; so that be owned, at tbe time, but tbe mule levied on. Tbe appellee, therefore, was not in a condition to elect which of the two mules be would retain as exempt from tbe levy, even tbougb tbe executions were bens upon both. Tbe adjudications of tbis court heretofore made, we think; show that tbe appellee bad tbe right to claim as exempt, tbe mule'levied on. — Calloway v. Carpenter et al., 10 Ala. Rep. 500 ; Ross v. Hannah, 18 Ala. 125. Tbe charge of tbe court that it was not necessary that tbe appellee should have interposed his claim to tbe mule, as exempt property, neither in writing nor orally — “ that it was not necessary that be should have interposed any claim at all, as tbe exemption was for tbe benefit of tbe family,” was erroneous. Section 2465 of tbe Code protects tbe officer, levying on property exempt from execution for tbe use of tbe family, from liability for any damages therefor, unless tbe affidavit prescribed by said section is made, and exhibited to tbe officer. It was' held in Simpson v. Simpson, 30 Ala. 225, that a verbal claim is sufficient to perfect tbe right of exemption, tbougb the statutory affidavit is necessary to give an action for damages against the officer ; and such is tbe present action. In Cook v. Baine, 37 Ala. 350, it was held that tbe statute applies only to cases where tbe suit is by tbe party in whose favor tbe exemption is claimed ; and that tbe affidavit is not necessary, in an action by the purchaser from tbe defendant in execution. But it clearly appears from tbe record of tbe present case, that tbe necessary affidavit was made in due time, and exhibited to tbe officer. As to tbis, there was no question or controversy in tbe court below. Tbe officer, who is tbe present appellant, admitted it in bis testimony. Tbe charge of tbe court, therefore, was clearly error without injury, wbicb- can not work a reversal of tbe, judgment. Judgment affirmed.