Sneider v. Heidelberger

B. F. SAFFOLD, J. The sheriff asked the circuit court to instruct him whether he ought to sell, under an execution, lands which the debtor claimed to be exempt from levy and sale under any legal process. The inquiry involves the question, whether a lien upon property obtained by attachment is removed by a law passed subsequently exempting the property from sale for the use of families. Is this such a matter as may be determined on motion and notice to the proper parties ? The summary remedies authorized by statute are not applicable. The audita querela, though without well defined limits, seems to be confined to matters which might have been made available to the party during the progress of the cause, if then known or existing. The summary relief upon motion which has taken the place of that writ, is directed to the prevention of an abuse of process, or some evident oppression of the plaintiff or officers of the court. In this case, the plaintiff might have moved for a rule upon the sheriff for not making the money, and thus brought the question before the court upon the sheriff’s defense. But if the sheriff may be instructed by the court upon what property an execution may be levied in one case, why not in all ? If the [134] court had jurisdiction to instruct the sheriff as it did, its judgment would protect the officer and deprive the defend^ant of his action for damages. Yet we know such is not the case. We think the proceeding was unauthorized.-Hammer v. Freese, 19 Penn. 255. The original suit was commenced by attachment levied on the property in question in 1866. The judgment was obtained after the passage of the exemption law of February 19th, 1867. The lien of an attachment is one given by law.-Revised Code, § 2955. It may be taken away by law.- Watson v. Simpson, 5 Ala. 233 ; Hale v. Cummings & Spyker, 3 Ala. 398; Lamar v. Gunter, 39 Ala. 324; Ray v. Thompson, 43 Ala. 484. There is no constitutional exception to laws which ex-empt certain portions of a debtor’s property from execution being so modified as to increase the exemptions, and the modifications made applicable to contracts previously entered into. “Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not, by every sovereignty, according to its own views of policy and humanity.-Cooley on Con. Lim. 287. As no jurisdiction of the matters in the transcript was obtained in the circuit court, the appeal is dismissed without costs.