[Block v. George.] Block v. George. Contest as to Right of Homestead Exemption. 1. Homestead exemption; contest of claim; when and how made.—When an affidavit is duly and regularly filed by a judgment debtor, claiming a homestead exemption in lands on which an execution has been levied, the plaintiff in execution, desiring to contest the claim, must file his affidavit of contest within ten days after notice that the claim has been filed (Code, § 2834), or the right to contest it is waived and lost. APPEAL from the Circuit Court of Wilcox. Tried before the Hon. JoHN MOORE. This was a contest as to the right to a homestead exemption, between Daniel W. Block, plaintiff in execution, and Robert D. George, defendant and claimant. The plaintiff's judgment was rendered on the 22d April, 1869, in an action commenced on the 11th March, 1869; and that action was founded on the defendant's promissory note for $383.48, dated the 1st January, 1866, and payable on the 1st January, 1867. An execution on this judgment, issued on the 14th December, 1876, was levied on the 20th December, 1876, on the defendant's interest in certain lands, particularly described in the sheriff's return; and thereupon, on the 27th February, 1877, said defendant made his affidavit and claim of exemption in the lands, before the clerk of the Circuit Court, to which the execntion was returnable, and on the same day he made and filed an affidavit and claim of exemption before the judge of probate. Thereupon, as the sheriff testified, he gave notice to the plaintiff of the filing of this claim and affidavit, and made return on the execution, on the 23d April, 1877, in these words: "The defendant having filed his affidavit, claiming the whole of the land levied on as exempt from levy and sale, and the same being more than one hundred and sixty acres, this execution is returned to ask the instructions of the court." On the 9th May, 1877, the plaintiff made and filed with the clerk of the Circuit Court his affidavit contesting this claim of exemption, on the grounds, as alleged, that it was invalid, and that it was excessive; but the record does not show that any issue was then made up to try the claim and contest. At the same term of the court, the plaintiff made a motion against the sheriff, for his failure to make the money on that execution; and during the May term, 1878, he recovered a judgment on that motion, against the 70 409 100 241 70 409 104 211 [Block v. George.] sheriff, "for one hundred and forty dollars, that being the value of one hundred and forty acres of the land owned by the said R. D. George, subject to sale under plaintiff's said execution." On the 3d June, 1881, a pluries execution was issued on the plaintiff's judgment against George, and was levied by the sheriff, on the same day, on the saine lands as before; but the levy was discharged, où the 21st June, 1881, as having been prematurely made; but, on the next day, the plaintiff having made and filed his affidavit contesting the defendant's claim of exemption already on file as above stated, the levy was renewed, and notice thereof given to the defendant. At the ensuing term of the court, to which the execution was returnable, the defendant moved the court to dismiss the proceedings in this case out of court, and that said property claimed as exempt be declared not liable to sale under plaintiff's execution, or other process, and releasing said property from any levy thereon." On the hearing of this motion, the facts above stated being in evidence, the court granted' the motion; to which ruling and judgment the plaintiff excepted, and he now assigns it as error. COCHRAN & DAWSON, for appellant.. BRICKELL, C. J.-The claim of exemption, in writing, and under oath, made by George on the 27th February, 1877, which was lodged with the sheriff, and of which notice was given the judgment creditor, arrested further proceedings on the levy of execution on the lands. The validity of the claim was the subject of contestation, by the interposition of an affidavit of the judgment creditor, his agent, or attorney, specifying that the contract, on which the judgment was founded, expressed a waiver of exemptions; or a general denial of the validity of the claim; or that the claim was excessive, or in part invalid. Code of 1876, $ 2828-30. Such affidavit, the judg ment creditor must interpose, within ten days after notice of the claim of exemption.--Code of 1876, § 2834. At the first term of the court, to which the process is returnable, an issue must be formed, on the claim of exemption and the affidavit of contest, the judgment creditor standing in the relation of plaintiff on the trial of such issue.-Code, § 2838. The appellant, the judgment creditor, at whose instance the levy was made, failed within ten days after notice of the claim of exemption to interpose an affidavit of contest. During the term of the court to which the execution was returnable, after the lapse of ten days from the time of notice, he did make and file such affidavit, but no issue was formed thereon; nor does it appear that the appellee had any notice of the filing of the affidavit, or that any order or proceeding was had, by which a con [Block v. George.] test, having the elements and form of a pending suit, was introduced into the court, and orders of continuance made. On the judgment execution continued to issue, and on the 28th June, 1881, the appellant made another affidavit of contestation, no new or other claim of exemption having been made by the appellee. At the Fall term, 1881, on motion of the appellee, the Circuit Court dismissed the proceedings, rendering judgment sustaining the claim of exemption. The contestation of a claim of exemption is strictly statutory and summary. The courts are not authorized to entertain it, unless the requisitions of the statute, from which authority to entertain it is derived, are strictly pursued. Defects in the proceeding, capable of being cured by amendment, may be waived, if the party having the right of objection does not in time interpose it, and proceeds without regard to them. It may be, if the creditor, at whose instance the levy is made, fails, for ten days after notice of the claim of exemption, to file the affidavit of contest, and it was filed subsequently, if, without objection, the claimant entered into the contest, and proceeded therein as if the affidavit had been regularly filed, all objection to the time of the filing would be regarded as waived. Or, if the affidavit was filed, and there was neglect, or failure to form the issue, at the term to which the execution was returnable, and it was, without objection, formed at a subsequent term, the regularity of the proceedings would be unassailable. The questions now presented are wholly different. There has been no waiver of the failure of the creditor to file the affidavit within the period prescribed by the statute, without which an issue could not be formed; nor has there been a waiver of the formation of the issue at the return term of the execution. Ten days having elapsed after notice of the claim of exemption had been given, in the absence of, and without notice to the appellee, the affidavit of contest was filed. The failure to file the affidavit within ten days, unexplained, is equivalent to a declination of the contest of the claim of exemption, and the court was without power, if it had made the effort, to force the claimant into the contest subsequently. The purpose of the statute is to afford a speedy and summary remedy for the determination of the matters arising on claims of exemption to which it refers, that the rights of creditors may be ascertained, and, if they have not rights, that the claimant may be quieted in title and possession. Either party, pursuing the statutory remedy, and claiming its benefits, must be diligent-must observe the requirements of the statute. We do not find any error in the proceedings of the Circuit Court, and its judgment is affirmed. [Warwick et al. v. Brooks.] 70 412 94 235 70 412 104 548. 70 412 114 392 70 412 137 626 Warwick et al. v. Brooks. Summary Proceeding against Sheriff and his Sureties, for his 1. Summary judgment; what necessary to sustain.-To sustain a summary judgment against a sheriff and his sureties, for his failure to return an execution (Code, §§ 3351–57), the record must affirmatively show that the plaintiff was entitled to pursue the statutory remedy, and that all the requisitions of the statute were complied with. 2. Same; notice not part of record.-The notice of motion, served on the defendants, is no part of the record, unless made so by order of the court, and can not be looked to for any purpose. 3. Same; recitals of judgment as to issue and appearance.—Where the judgment-entry, in such summary proceeding, recites that the plaintiff came by attorney, “and the defendants not being represented in court. and the presiding judge having been of counsel,” the clerk selected an attorney of the court, to preside on the trial; “and issue being joined upon the plaintiff's motion for a judgment against the defendants, there upon came a jury," &c.; held, that these inconsistent recitals did not authorize the inference that any of the defendants appeared and joined issue. 4. Same; when judgment is by default.—If the defendants do not ap: pear, a judgment by default should be taken against them, and the judgment-entry should then show that every material averment of the motion was proved. APPEAL from the Circuit Court of Perry. Tried before the Hon. JOHN P. TILLMAN, an attorney of the court, selected by the clerk (Code, § 664), on account of the incompetency of the presiding judge. v. The judgment in this case, from which the appeal is sued out, is in the following words: William M. Brooks r. J. F. Warwick, and Geo, W. Chambers, H. C. Bingham, J. M. N. B. Nir, Thos. W. Curry, James T. Dye, L. Clomger, J. C. Hendricks, and A. J. Street, as securities on his official bond, as sheriff of Talladega county. This day came the plaintiff. by his attorney, and Hon. John Moore, the presiding judge, having been of counsel, is disqualified to try this cause; and the defendants not being represented in court, thereupon John P. Tillman, a practicing attorney in this court, learned in the law, was by the clerk of this court appointed and selected to preside on the trial thereof; and issue being joined upon the motion of the plaintiff for a judgment against the defendants, there upon comes a jury," &c., "who, being duly impanelled and sworn, according to law, well and truly to try the issue joined, [Warwick et al. v. Brooks.] upon their oaths do say, 'We, the jury, find the issue in favor of the plaintiff, and assess the damages at the sum of seventytwo dollars. It is therefore considered by the court, that the plaintiff recover of defendants the said sum of seventy-two dollars, the damages as assessed by the jury, together with the costs in this behalf expended; for which let execution issue." The transcript also contains the motion by which the proceeding was instituted, and the notice thereof served on some of the defendants, with a return of not found as to two of them, and an amended motion and notice. The judgment is now assigned as error, and several defects are particularly specified. GEO. F. MOORE, for appellants. STONE, J.-The present was a proceeding under the statute, instituted by motion, to obtain a judgment against the sheriff and his sureties, for failing to return an execution issued from the Circuit Court of Perry county. The remedy invoked is summary, and to sustain a judgment thus obtained, the record must disclose every fact necessary to entitle the party to such remedy, and that it has been pursued according to the statute.-2 Brick. Dig. 464, § 1. The defendants (appellants here) did not appear in the court below, and the cause proceeded to final judgment in their absence. In the absence of an issue joined, we have uniformly held that, unless the record affirmatively shows that every material step was taken to uphold the jurisdiction, a reversal is inevitable. Nothing is taken by intendment. The notice, copied in the transcript in this cause, can not be looked to, or considered, unless it had been made a part of the record by a proper order of the court. It is not, unless so made, any part of the record of the cause.---Connoly v. A. & T. Railroad, 29 Ala. 373; Barclay v. Barclay,. 42 Ala. 345; Arthur v. The State, 22 Ala. 61; Curry v. Bank, s Porter, 360; Reid v. Jackson, 1 Ala. 207; Brown. Wheeler, 3 Ala. 287. The judgment-entry in this cause contains inconsistent and repugnant recitals. It recites, "This day comes the plaintiff by his attorney, * * and the defendants not being repre * sented in court;" and thereupon the clerk selected an attorney, practicing in the court, to preside at the trial, "the presiding judge having been of counsel," and therefore disqualified. Further on, the judgment-entry uses this language: "And issue being joined upon the motion of the plaintiff for a judgment against the defendants, thereupon comes a jury," &c. We find in the record no issue actually made up, and amid the inconsistent recitals noted above, we can not, in a summary proceeding like this, affirm that the defendant was represented, or |