Penton v. Diamond

WALKER, J. This is a suit on a sheriff’s official bond to •recover, damages for levying an execution upon and selling personal property of the plaintiff, which, prior to the sale, the plaintiff had claimed as exempt. The writ under which the levy and sale was made was issued on a judgment for the recovery of the possession of land, damages for the wrongful detention thereof and the costs of the suit. The writ in its terms followed the judgment. The portion of the oral charge of the trial court to which exception was reserved, and the refusal of the written charge requested by the defendants, present the only question in the case. The right to claim property as exempt from levy and sale on execution is of constitutional and statutory creation. Personal property may be claimed in this state “as exempt from levy and sale under execution or •other process for the collection of debts contracted,” etc. Art. 10, § 1 of the Constitution of Ala.; Code, 1886, § 2511. Such exemptions may not be claimed against process generally. A writ of possession for land, and for the collection of damages assessed for the wrongful detention thereof and the costs of the suit, is not, as to the damages and costs, subject to the ■claim of exemptions of personal property allowed by our laws, [612] as it is not process for the collection of a debt contracted; and this appearing on the face of the writ, the sheriff had a right to disregard the claim of exemptions and to sell the property levied on as if no such claim had been interposed. — Stucky v. McKibbon, infra, p. 622; 8 So. Rep. 379; Meredith v. Holmes, 68 Ala. 190; Williams v. Bowden, 69 Ala. 433; Vincent v. The State, 74 Ala. 276; McLaren v. Anderson, 81 Ala. 106 ; Ex parte Barnes, 84 Ala. 540. The Circuit Court erred in its rulings above referred to. Reversed and remanded.