Opinion
6 Div. 178.
March 22, 1932. Rehearing Denied May 10, 1932.
Appeal from Court of Common Claims, Jefferson County; E. N. Hamill, Judge.
Assumpsit by J. E. Dubose against H. L. Lewis, trustee, S. J. Street and Erle Pettus, substituted defendants. From the judgment, substituted defendant Street appeals.
Affirmed.
G. R. Hubbard, of Birmingham, for appellant.
One must take advantage of his rights at the proper time, and neglecting to do so will be considered a waiver. Ex parte Hall, 47 Ala. 675; Collins v. State, 22 Ala. App. 323, 118 So. 264; Wright v. Lang, 66 Ala. 389; Gable v. Kinney, 219 Ala. 150, 121 So. 511; Phillips v. Sipsey C. M. Co., 218 Ala. 296, 118 So. 513; Corona C. Co. v. Hendon, 214 Ala. 139, 106 So. 855. Grantor has no control over funds in escrow where conditions of escrow agreement have been performed. White Star, etc., v. Moragne, 91 Ala. 610, 8 So. 867; Ullendorff v. Graham, 80 Fla. 845, 87 So. 50; 21 C. J. 878, 883; Johnston R. I. Co. v. Nat. City Bank, 95 Fla. 282, 116 So. 229.
L. C. Albright and Erle Pettus, both of Birmingham, for appellees.
Placing the money in the hands of the stakeholder constituted no waiver of the right of exemptions. Code 1923, § 7961; Lippman v. 1st Nat. Bank, 120 Ala. 123, 24 So. 581, 74 Am. St. Rep. 28. Conditional deposit of money is not an escrow. 21 C. J. 866, 867; Firemen Ins. Co. v. McMillan, 29 Ala. 147.
We take no notice, on this appeal, of the constitutionality, vel non, of the court from which the case is brought. Gen. Acts Ala. 1931, pp. 621-628.
It appears that the decisive question is as to whether or not J. E. Dubose waived his right to claim as exempt, etc., to him (Code 1923, § 7886), a certain sum of money left on deposit with Hon. Jas. A. Simpson, in order to procure the release of a garnishment then resting against one of Mr. Simpson's clients; he being a practicing lawyer.
The effect of the judgment appealed from was to find that said Dubose did not so waive that right.
Code 1923, § 7961, provides the way and manner of evidencing a waiver, of the kind contended for, here, by appellant.
If this way and manner (Code, § 7961) is not exclusive, certainly, we think, is it true that such waiver is never to be implied. Lippman v. First National Bank of Anniston, 120 Ala. 123, 24 So. 581, 74 Am. St. Rep. 28.
So far as we can see — surely, as against the rules which govern us in review, on appeal, the trial being before the court without a jury — the trial court correctly decided the issues.
The judgment appealed from is affirmed.
Affirmed.