Opinion
7 Div. 373.
April 26, 1923.
Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.
J. A. Downer, of Birmingham, and C. A. Wolfes, of Ft. Payne, for appellant.
The sheriff cannot inquire behind the face of the process in his hands, and determine for himself that the judgment rests on a cause of action against which a claim of exemption might be unavailing. McLaren v. Anderson, 81 Ala. 106, 8 So. 188.
Isbell Scott, of Ft. Payne, for appellee.
The judgment being based on tort, the sheriff had the right to disregard the claim of exemption. 25 C. J. 129; Kennedy v. Smith, 99 Ala. 83, 11 So. 665; Lockwood v. Thompson, 198 Ala. 295, 73 So. 504, Northern v. Hanners, 121 Ala. 590, 25 So. 817, 77 Am. St. Rep. 74; Gunn v. Hardy, 130 Ala. 642, 31 So. 443.
Notwithstanding Wooten seasonably interposed his claim of exemptions to real property, on which the sheriff had effectively levied (we assume, for the occasion only) an execution, in or on which it was not noted or indicated in any way that no exemptions thereagainst could be claimed, the sheriff proceeded to a sale of the property of Wooten, defendant in the execution. It was ruled in McLaren v. Anderson, 81 Ala. 106, 108, 8 So. 188, that a sheriff cannot disregard a claim of exemptions, seasonably interposed, and sell the property so claimed as exempt under an execution, in which process it is not made to appear that the execution's command is not subject to claim of exemptions. In such circumstances, the sheriff cannot have recourse to the judgment to determine whether claim of exemptions may be interposed. In McLaren v. Anderson, supra, it was aptly said:
"We consider it unsafe to hold that the sheriff can inquire behind the face of the process in his hands, and determine for himself that the judgment rests on a cause of action, against which homestead exemption is unavailing."
The defendant in execution has the right to contest with the plaintiff the propriety and efficacy of his claim of exemptions before a sale of his property is had.
The execution should have been vacated.
The judgment appealed from is reversed, and the cause is remanded, on the authority of McLaren v. Anderson, supra.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.