The Montgomery advertiser., 1901-06-30

1 of the property levied upon under the | writ of attachment, the plaintiff in the 1 attachment suit was paid the amount of the judgment. On appeal to the ' Supreme Court, the judgment in the i attachment suit was amended or modi- i fled by striking. therefrom the waiver as to the exemption of personal property; and, thereupon. the present plaintiff. who was the defendant in the attach ment suft, brought the pending action against the plaintiff in said suit to recover the amount so paid out of the proceeds of the sale under the attach ment. Held: That it was competent to show by the clerk of the court in which the attachment suit was brought. the identity of the cause decided in the Supreme Court with the attach ment suit between the same parties. and that, therefore, the testimony of said clerk that there was no other case pending in said court between the same parties except the one appealed from. and in which the plaintiff therein was paid the amount sought to be recovered by the pending suit. is admissible.
 4. Same: admissibility of evidence In an action to recover money had and received. which was alleged to have been improperly paid the defendant, who was the plaintiff in an attach ment suit. out of the proceeds of the sale under a writ of attachment, 1t is competent for the attorney of one of the parties. who was present at the sale made by the sheriff, to testify as to the total amount realized from said sale.
 5. Claim of exemptions: amendment thereof; admissibiiity in evidence.-A claim of exemptions to property levied upon under an attachment which fall ed to state when the debt of the Ce- fendant in the attachment suit ac- crued, may be amended by showing that said debt sued on was contracted after April g, 1873; and in subse- quent action brought to recover the amount improperly paid to the plaintiff in the attachment suit by reason Of the personal property sold under an attachment being sold as exempt. such amendment of the claim of exemptions is admissible in evidence.
 6. Attachment suit; claim of ex- captions; recovery for money had and receiyed.-In an attachment suit, the defendant claimed the property up- on which the writ of attachment was levied as exempt, by fixing her claim with the sheriff as provided by statute, Code. Sec. 2047), the sheriff did not notify the plaintiff of said claim, but the defendant flied a plea setting up her claim of exemptions. The plaintiff recovered judgment in which 1t vas recited that against such recovery there was no claim of exemptions to be allowed to the defendant. Under a writ of venditioni exponas issued upon said judgment, the property levied upon was sold. and the plaintiff paid the amount of the recovery as stated in the judgment. On appeal to the Supreme Court, this judgment was modified by striking out that portion which provided for the waiver of ex- emptions. Held: The money paid to the plaintiff out of the property claim ed as exempt, to which it was shown plaintiff had no right. and which ex equo ct bono belonged to the defen- dant in the attachment suit, can be recovered by said defendant in a sub sequent action against the plaintiff in the attachment suit for money had and received.
 Affirmed.
 Opinion by Haralson, J.