
    Straughn v. Richards.
    
      Claim of Exemption; Informalities or Defects Amendable Not Ground to Reject.
    
    1. Defects in claim, of exemption. — Informalities or defects which are amendable in the court, in a claim of exemption presented to a levying officer, will not justify him in assuming its invalidity or in disregarding it by proceeding to sell the property claimed.
    2. What does not destroy claim.- — The fact that the officer to whom a claim of exemption was handed gave the claim back to the defendant with the statement that he would have noth- ' ing more to do with the matter did not destroy its effect. The defendant having presented the claim to the officer the property so claimed was thereby protected from sale until the claim was successfully contested.
    Appeal from the Circuit Court of Covington.
    Tried before the Hon. J. W. Foster.
    The plaintiff sued the defendant in detinue to recover certain lumber. Prior to this suit the plaintiff had recovered a judgment against the defendant before a justice of the peace. Execution issued on this judgment and ivas levied on the lumber. The defendants made out a claim of exemption which he handed to the constable having the execution in hand, who looked at it and handed it back to the defendant with the remark that he would have no more to do with the matter. The claim as presented was defective, but the defect was one curable by amendment, The constable sold the lumber under tbe execution and tbe plaintiff became tbe purchaser and bad tbe lumber moved. Tbe defendant on tbe next day bauled tbe lumber back to bis own premises. There was verdict and judgment for tbe defendant, tbe court having given the affirmative charge at bis request. Tbe plaintiff .appealed and assigns as error tbe giving of this charge to tbe defendant and in refusing tbe affirmative charge to him.- .
    Affirmed;
    Morgan D. Jones, for appellant.—
    (1). Tbe claim of exemption ivas not filed with tbe officer, because it was not received by him to be kept on file. — 60 Am. Dec. 705; 20 Am. St. Rpts. 102; 43 lb. 900; Phillips v. Beene, 38 Ala. 248. (2). Tbe claim was defective; it did not show when tbe debt was contracted; it did not describe tbe property; it was tbe duty of tbe officer to disregard it.-Ely v. Blacker et ah, 112 Ala. 311; Young v. Hubbard, 102 Ala. 333; Toiosnere v. Graft é Sueldan, 88 Ala. 312; Block v. George, 83 Ala. 178; McLaren v. Anderson, 81 Ala. 106. (3). Defendant being a trespasser could not question tbe title of plaintiff. — Dosier v. Joyce, 8 Porter 303; Staker v. Yurley, 11 Ala. 332; Huddleston v. Huey, 73 Ala. 295; Wortham v. Gurley, 356.
    ■ B. H. Lewis, contra,
    
    cited, Wright v. Grabfelder, 74 Ala. 460; Kennedy v. The Bank of Tuscaloosa, 108 Ala. 170; Toiosnere v. Bucklan, 88 Ala. 314.
   SHARPE, J.

— Unless tbe case, be one in which tbe right of exemption does not exist, a claim of exemptions made in due timé when not frivolous or wanting in tbe essentials, of a bona fide claim cannot be lawfully ignored. When so made, mere informalities or defects in the .claim, which might be fatal on objection made in tbe court having jurisdiction of the cause, will not justify the levying officer in assuming its invalidity or in disregarding . it by proceeding to sell the property claimed. In such case, the sufficiency of tbe claim becomes a judicial question which tbe officer is without power to determine, and which must be referred to tbe court' by a contest in the mode, prescribed by tbe statute.-Kennedy v. Smith, 99 Ala. 83; McLaren v. Anderson, 81 Ala. 106; Block v. Bragg, 68 Ala. 291; Code § 2047.

The claim in question as presented to the constable shows a definite claim to the lumber in controversy in substantial compliance with the statutory requirements. Code § § 2041-2047. The defect in failing to show that the debt was contracted during the existence of the law creating the exemption was amendable in the discretion of the court, and was not such as to influence the action of the constable.—Block v. Bragg, supra.

Having presented the claim to the constable, the property so claimed was thereby protected from sale until the claim was successfully contested. The defendant was not placed in default by the act of the constable in returning to him the claim with the statement that he would have nothing more to do with the matter. The failure of the officer to do his duty in respect of retaining the claim and bringing it to the notice of the plaintiff may have deprived the defendant of the right to a release of the property until the plaintiff was given the opportunity for ten days to contest, but the effect of the claim was not destroyed thereby.'

The sale upon which the plaintiff bases his right to recover was unauthorized and conveyed to him no title. Theré was no error in giving the charge requested- by defendant.

Affirmed.  