Agnew v. Walden & Son

STONE, 0. J. This case was tried on pleas numbered 3, 9 and 10, and under them tbe entire defense was made which could have been presented. We will not consider tbe rulings on tbe demurrers to tbe other pleas; for, whether right or wrong, they worked no injury. — Mitcham v. Moore, 73 Ala. 542; Rice v. Drennan, 75 Ala. 335. It is not our intention, however, to intimate there was any error in tbe rulings. On tbe former appeal — 84 Ala. 502' — we held tbe evidence was sufficient in this case to show that a proper statement of tbe claim bad been filed in time in tbe office of tbe judge, of probate, to meet tbe requirements of tbe statute. — Code of 1886, § 2083. We adhere to what we tben said. We confine it, however, to tbe simple fact of tbe debt — five hundred dollars, evidenced by tbe note under seal. Of this claim, as a debt against tbe estate, tbe presentation, or filing, was sufficient. Tbe claim sued on, as described in tbe complaint, and as tbe testimony tends to show, contains a waiver of all exemptions or relief laws under the statutes and constitution of Alabama. This is a good waiver of exemptions of personal property, but not of real estate. — Neely v. Henry, 63 Ala. 261. Tbe substance of tbe claim, as filed and recorded in tbe Probate Court, states tbe date of tbe note, amount, when due, names of tbe payees, and date of filing. It contains no mention of tbe waiver of exemptions. In Smith v. Fellows, 58 Ala. 467, we stated some of tbe reasons which go to make up tbe policy of our legislation requiring claims [111] against decedents’ estates to be presented or filed within eighteen months. There may be other reasons. Personal representatives, among their first duties, are required to set apart exemptions of personal property, if there be a surviving widow, or minor child or children; and it may be that, to constitute a statement of the claim that will cut off exemptions, the waiver should be set forth, if there be one. But we need not decide this question. The judgment-entry is a simple judgment for money, and is silent as to the stipulation waiving exemptions. This amounts to an abandonment of the waiver, and a consent to accept a common judgment for money. — Courie v. Goodwin, 89 Ala. 569; Brown v. Leitch, 60 Ala. 313; Hosca v. Talbert, 65 Ala. 173. Some of the questions sought to be raised are scarcely presented in such form as that we can consider them. Eliminating them, we find no error in the record. Affirmed.