Taylor v. Tomlinson

Wood, J., (after stating the facts.) 1. The judgment of the circuit court is correct. The judgment of the justice on the first application for supersedeas is as follows: “Comes the defendant, C. A. Tomlinson, and files before me a schedule in exemption, as required by law; also the original notice of said schedule to the plaintiff; and, it appearing to the court, from the return of the sheriff thereon, that said notice was served by delivering a copy thereof to the oldest member of the family of said plaintiff at home, and it appearing to the court that the oldest member at home, and to whom said copy was delivered, was not of the age required by law, it is therefore held that said plaintiff did not have sufficient notice, and supersedeas refused.” While the l’ecord does not disclose any reason given by appellee for dismissing his appeal in the circuit court, it was doubtless for the reason that he concluded that the judgment of the justice deterjnining that he had not given notice to the opposite party as required by law (Sand. & H. Dig., § 5891), was correct. Appellee had the right to dismiss his appeal, and his action in so doing cannot be held as an abandonment or waiver of his exemptions. If he had not given notice to the opposite party as the law requires, which the judgment of the justice finds, and the dismissal of the appeal concedes, he acted wisely in dismissing same; for the court had no jurisdiction of the person of the appellant, and any judgment that might have been rendered in said court on said appeal, as against him, would have been void. The dismissal of the appeal by appellee, and the giving of notice to appellant that he (appellee) would file another schedule before the justice, was tantamount to taking a non-suit and the commencement of new proceedings to secure his exemptions. The rendition of the judgment against appellee and his bondsman, after a dismissal of the appeal, — conceding same to have been regular, — did not estop appellee from new proceedings to obtain his exemptions. Appellee bound himself, in case of a breach of the bond by dismissal of his áppeal, to deliver the property, or its value, to the proper officer. This he complied with by delivering the property to the proper officer when called for. The only purpose of the bond was to have the property or its value forthcoming, subject to the execution for the debt of appellant, in the event the property was held not to be exempt. As we have seen, the dismissal of the appeal did not determine that question, and such an issue could not spring out of a breach of the bond; 2. It is said that it was the duty of appellee to file his schedule and claim his exemptions before the clerk. The execution under which this property was held was issued by the justice, and not by the clerk. Sand. & H. Dig., § 3718. The order of delivery issued by the clerk in pursuance of the judgment of the court on the bond commanded the sheriff to take possession of the property, and deliver them to the constable, and the constable was ordered by said judgment to sell the property under the original; so that process .under which the property was about to be sold was issued by the justice. It was therefore proper to file the schedule with the justice. Affirm.