Totten & Brother v. Sale & Co.

BRICICELL, C. J. Upon personal property claimed as exempt from levy and sale for the payment of debts, if a declaration and claim of exemption has been filed in the office of the judge of probate of the county in which it is situate, a levy can not be made, unless the plaintiff in the process proposed to be levied, mate affidavit, and give bond, as prescribed by the statute. — Code of 1876, § 2830. The making of the affidavit, and giving the bond, are conditions precedent to a valid, lawful levy. A levy made without observing them is invalid and illegal, and may, on motion, be set aside by the court. There is some conflict in the evidence, whether the affidavit contesting the claim of exemption was not made .and filed before, or contemporaneously with the levy. If the Circuit Court determined that the affidavit was not made and filed until after the levy, unless, on this question of fact, the decision was manifestly wrong, the judgment could not be reversed. "When questions of fact are necessarily submitted to the decision of a primary court, without the intervention of a jury, the decision will not on error be reversed, unless clearly erroneous.—Dane v. Mayor, 36 Ala. 304. However that fact may be, it is undisputed, that the plaintiffs did not make a bond payable to the defendant claiming the exemption, as required by the statute, before or at the time of the levy. The only bond executed, was a bond payable to the sheriff, exacted by him for his own protection and immunity, which was not intended to serve, and can not be made to serve, the purposes of the bond required by the statute. The bond not having been given before, or at the time of the levy, could not be given subsequently, on the hearing of a motion to set aside the levy. Affirmed.