Todd v. McCravey's Adm'r

SOMEBYILLE, ,7. Section 2842 of ' the present Code (1876) provides, that whenever any money, or choses in action, are levied on by process of garnishment on any attachment, judgment, or summons and complaint, and the defendant in such attachment, or other process, “claims the same, or any part thereof, as exempt from such levy, he shall file such claim in writing, verified by his affidavit, in \the] coiort where such proceedings arepending, setting forth what other personal property, if any, he has, specially, where the same is, and its value; or, if he has none, stating that fact.” It is further provided, that such claim may be contested, in the same mode as other eases of contestation are conducted. — Code, 1876, § 2842. The present case is one where the claim of exemption is interposed to certain rents due by a garnishee, in an equitable garnishment, to the defendant in a chancery suit. The claim of exemption was therefore properly filed in this court, where the proceedings were pending, and which alone had jurisdiction of the matter. Section 2834 of the Code, requiring such claim in writing to be “lodged with the officer making the levy,” in certain cases there provided for, has reference only to cases where other personal property than money or choses in action is levied on — property of a tangible nature, such as ordinarily is the subject of levy and sale under execution. That section was not intended to include cases where money' or choses in action are attached by garnishment, when, in our opinion, the statute clearly intends to authorize the interposition of a claim of exemption at any time before a condemnation of the debt in the hands of the garnishee; subject, of course, to reasonable regulation by the court having jurisdiction ’of the proceedings. Henderson v. Tucker, 70 Ala. 381; Sherry v. Brown, 66 Ala. 51; Daniels v. Hamilton, 52 Ala. 105. The appellant is shown to have previously filed her “ declaration and claim of exemption ” for record in the Probate Court, in due form, as authorized by section 2828 of the Code. This is made by statute “primdfacie evidence of the correctness of such claim.” — Code, § 2831. The burden of proof was, therefore, cast on the contestant, to show that his alleged grounds of contestation -were correct, and that the debt was subject to the process. — Code, § 2838. The issue of fact raised before the chancellor, upon which this was made to depend, among other things, was, whether the debt due McCravey was created prior to February 19, 1867, or after that daté. If prior to this date, the rents were subject to the garnishment process, and the exemption claim was untenable. If subsequent to it, the reverse would be true. — Code, 1876, § 2844; Code, 1867, § 2884; Peevey v. Cabaniss, 70 Ala. 258; Fearn v. Ward, 65 Ala. 33; Nelson v. McCreary, 60 Ala, 301. [472] We have examined the testimony in the case, and are of opinion that it clearly preponderates in favor of the view, that the debt in question was created during the year 1867, and subsequent to the nineteenth day of February. We have in favor of this fact the testimony of the defendant, with some very strong'and probable implied admissions in the complainant’s bill, aided by th <¡> prima facie legal presumption that the property is exempt until the contrary is proved. Against this is opposed only the naked assertion of the complainant, who is not shown to have any knowledge of the fact, except such as lie seems to have derived from “the book of account” of h'is intestate. It is not made to appear in whose hand-writing such entry was made, nor are any facts stated from which the inference can be justified that it was made contemporaneously with the event to which it purports to relate. — Dismukes v. Tolson, 67 Ala. 386 ; Union Bank v. Knapp, 15 Amer. Dec 181; 1 Greenl. Ev. §§. 118-120. This was unsatisfactory, especially in view of repugnant admissions in the bill. The decree of the chancellor is reversed, and a decree will be rendered in this court, adjudging the issue on the contestation of the exemption against the complainant, and in favor of the defendant, Mrs. Todd, and vacating’the garnishment proceedings. The said defendant is adjudged to be entitled to the amount of rents in the hands of the register, which will be paid to her under’the. order of the chancellor. The costs of this appeal, and of the exemption contest in the Chancei^ Court, will be taxed against the appellant. The garnishee will be discharged, with his reasonable costs.