Opinion
8 Div. 810.
March 28, 1933. Rehearing Denied April 18, 1933.
Original petition of Mrs. Clem C. Watkins for mandamus to Chas. E. Bragg, as Clerk of the Circuit Court of Lawrence County, to require him to make and forward certificate of appeal and transcript in the case of Mrs. Clem C. Watkins v. Citizens' Bank.
Writ denied.
Certiorari denied by Supreme Court in Ex parte Watkins (8 Div. 504) 226 Ala. 634, 148 So. 335.
Lynne Lynne, of Decatur, for petitioner.
Claimant, a married woman, was authorized to appeal without giving security for costs of appeal on making affidavit that she was unable to give security. Code 1923, § 6138; Ex parte Jones, 217 Ala. 208, 115 So. 301. Where the clerk refuses to certify the appeal, application may be made to the Court of Appeals for appropriate orders to have certificate sent up. Ware v. McDonald, 62 Ala. 81.
R. L. Almon, of Moulton, for respondent.
Petitioner's case does not come within the exception to the general rule requiring security for costs on appeal. Code 1923, § 6138; Guy v. Lee, 80 Ala. 346; Ex parte Brown, 213 Ala. 7, 105 So. 170; Scott v. Shepherd, 215 Ala. 671, 112 So. 137; Hildebrand v. First Nat. Bank, 221 Ala. 216, 128 So. 219; Nichols v. Snead, 224 Ala. 324, 140 So. 375. The judgment is not for money. L. N. v. James, 204 Ala. 604, 86 So. 906; Code 1923, § 10376.
Petitioner filed a claim bond under the statute, claiming to own certain personal property levied on as the property of her husband, in a suit wherein Citizens' Bank was plaintiff and J. W. Watkins, the husband, was defendant. On the trial of the claim suit in the circuit court, judgment was rendered for the plaintiff and found the property to be that of the husband. From that judgment petitioner seeks to appeal, without giving security for costs, claiming the right under section 6138 of the Code of 1923. The section just cited appeared in the Code of 1907 as section 2879 and that section was amended by Act of the Legislature 1915 (page 715), so as to make it read as it now appears in the present Code. The addition in the present Code, however, is not broad enough to cover a case of this kind. The adjudication here is simply that the claimant does not own the property which she has claimed in her bond. The statute gives exceptional privileges to married women because of disability of coverture, but is restricted to the exceptions named in the statute and may not be enlarged by construction. The judgment did not condemn the property for sale as the separate estate of petitioner, but on the contrary the verdict and judgment was that it is not her property. Guy v. Lee, 80 Ala. 346.
The writ of mandamus is denied.
Writ denied.