Carter v. O'Bryan

• Decision Date: 10 January 1895
• Court: Alabama Supreme Court
• Parties: CARTER v. O'BRYAN ET AL.

16 So. 894

105 Ala. 305

CARTER v. O'BRYAN ET AL.

Supreme Court of Alabama

January 10, 1895

Appeal from circuit court, Colbert county; H. C. Speake, Judge.

Claim suit by L. A. Carter against O'Bryan Bros. to try title to goods attached by the latter under a writ against W. F McGwier. There was a judgment for attachment plaintiffs and claimant appeals. Affirmed.

This was a statutory claim suit, instituted by the appellant, L A. Carter interposing a claim to a stock of goods, which had been levied upon by an attachment, sued out by the appellees O'Bryan Bros., against W. F. McGwier, on the ground that the defendant had fraudulently disposed of his goods. Upon the trial of the claim suit, the following proceedings were had, and the following facts were disclosed: On January 6 1892, O'Bryan Bros. sued out an attachment against W. F McGwier, a resident of Lawrence county, before a justice of the peace of Lawrence county, on the ground that the defendant, McGwier, had fraudulently disposed of his goods. The writ of attachment recited on its face, that it should be returned to the next "term of the circuit court of Colbert county, to be held on the fourth Monday in April, 1892." The affidavit and bond, which were made preparatory to the issuance of this writ of attachment, showed that the writ was returnable to the circuit court of Lawrence county, to be held on the fourth Monday in April, 1892. The writ was addressed to "any sheriff of the state of Alabama," and was levied on January 6, 1892, by George S. Weaver, the sheriff of Colbert county, upon "the entire stock of goods of W. F. McGwier situated in the town of Leighton, Colbert county," consisting of dry goods, notions, etc. After the levy of this attachment upon the stock of goods by the sheriff, L. A. Carter, on January 7, 1892, interposed a claim to the goods by making an affidavit before George S. Weaver, the sheriff of Colbert county, who levied the attachment, in which he swore that the property levied upon was not the property of W. F. McGwier, but was his property; and upon the execution of a claim bond, which was approved by Weaver, as sheriff, the property was turned over to the claimant. The affidavit and bond made by the claimant recited that the goods had been levied upon under an attachment issued by the justice of the peace for Lawrence county, "and returnable to the circuit court of Lawrence county, Ala." At the time of the interposition of this claim, there was an agreement entered into between the counsel for the plaintiffs in attachment and the defendant and claimant, in which they agreed that the sheriff in making his return of the levy should not be required to severally mention each item levied upon, but should describe the levy as being made upon dry goods, notions, etc., "and the entire stock of goods contained in the storehouse formerly occupied by W. F. McGwier"; and the agreement recited that "the intention of the parties is to avoid the time, expense and trouble of taking a complete inventory of said stock of goods." The sheriff returned the writ of attachment, attachment bond and affidavit, together with the claim bond and affidavit to the next term of the circuit court of Lawrence county, which commenced on the fourth Monday of April, 1892. At the fall term, 1892, of the circuit court of Lawrence county, the following order was made by the court: "Come the parties by their attorneys and the defendant moves to quash the attachment and dissolve the levy thereof, because the affidavit for the issuance of said attachment was made before a justice of the peace for the county of Lawrence, and returnable to the circuit court of Colbert county, and was executed by the sheriff of Colbert county. On consideration by the court, and it appearing to the satisfaction of the court that the defendant has filed pleas to the merits of this case, and that the returns were in fact made to the circuit court of Lawrence county, it is ordered by the court that said motion be, and the same is hereby overruled. On motion of plaintiff, it is ordered that the sheriff of Colbert county return to this court the original attachment by him levied upon the property described in his levy and true copies of the bond and affidavit made by claimant to try the right of property in this case, certified by him to be correct, to this court. He will also return the original bond and affidavit to try the right of property and a true copy of the attachment bond and affidavit certified by him to be correct, to the circuit court of Colbert county." In obedience to this order of the court, Shelby Grisham, who was then sheriff of Colbert county, certified to the circuit court of Colbert county the original claim bond and affidavit, and a true copy of the attachment bond and affidavit.

At the spring term, 1893, of the circuit court of Colbert county, the claimant moved the court to quash the writ of attachment issued against W. F. McGwier, at the suit of O'Bryan Bros., and to discharge the levy thereunder upon the goods claimed by him, upon the following grounds: (1) Because said writ of attachment is void. (2) Because the writ was issued by the justice of the peace of Lawrence county, and made returnable to the circuit court of Colbert county. (3) Because the justice of the peace who issued the writ of attachment had no jurisdiction to issue it in Lawrence county, returnable to the circuit court of Colbert county. (4) Because the writ of attachment was issued by a justice of the peace of Lawrence county, and levied by a sheriff of Colbert county, upon goods situated in Colbert county. (5) Because the writ of attachment was not levied by the sheriff of the county from which the same issued. (6) Because the justice of the peace issuing the writ had no authority to issue the same, directed to any sheriff of the state. (7) Because the writ of attachment was made returnable to the circuit court of Colbert county on the fourth Monday of April, 1892, when there was by law no court for Colbert county on that day. (8) Because the levy by the sheriff of Colbert county upon the goods claimed was unauthorized by law, and is void. The plaintiffs filed an answer to this motion of the claimant, in which they alleged that said attachment sued out by O'Bryan Bros. against W. F. McGwier was sued out before a justice of the peace of Lawrence county, returnable to the next term of the circuit court of Lawrence county, which was fixed by law to be held on the fourth Monday in April, the same time fixed in the writ of attachment; that the affidavit, bond and writ all show that said writ of attachment was returnable to the circuit court of Lawrence county, but the writ of attachment issued by said justice of the peace was a printed form, prepared for Colbert county, and the said justice of the peace failed to erase the word "Colbert" in said writ, and to write the word "Lawrence" in said writ; but that all the papers in said writ show that said writ was intended to be returnable to the circuit court of Lawrence county, and was in fact returned to said court; that the defendant in said attachment suit, W. F. McGwier, appeared and pleaded to the merits of the attachment suit in the circuit court of Lawrence county, at the April term, 1892, the term to which said writ was made returnable, and thereby waived any and all irregularities in said proceedings; that the claimant, Carter, made a claim bond in said suit, in which he admitted that the said attachment was returnable to the circuit court of Lawrence county, and he also appeared and made the agreement which is attached to the writ, and by his admissions and agreement the claimant has waived any irregularities in the papers. The plaintiffs averred in their answer that there was only an irregularity in the writ which is amendable under the laws of Alabama, and of which the claimant could not take advantage. The answer further averred, "that the attachment was levied by the sheriff of Colbert county, not because it was on its face returnable to the circuit court of Colbert county, but because the property was found in Colbert county, and said writ was returned by him, after the levy, to the circuit court of Lawrence county." The claimant demurred to this answer of the plaintiffs upon several grounds, among which were the following: (1) That said answer was no answer to the motion of claimant to quash the writ of attachment and dissolve the levy thereunder. (2) That the answer admits that the justice of the peace who issued the attachment had no authority to issue the same. (3) The fact that said writ was made returnable at the time of the convening of the circuit court of Lawrence county cannot correct the direction of the writ to be returned to the circuit court of Colbert county. (4) Because the intention to make said writ returnable to Lawrence county cannot prevail over the plain mandate of the writ to the sheriff to return the same to Colbert county. (5) Because the sheriff was without authority to return the said writ to Lawrence county, and his act in so doing was unauthorized and void. (6) The appearance of the defendant, McGwier, and his answer to the writ cannot bind the claimant or in any way affect his rights in this case. (7) No act or admission of the claimant, either in appearing in the circuit court, or in the bond or affidavit made by him could confer jurisdiction upon the said court, or give vitality to the writ issued. These demurrers to the answer of the plaintiffs were overruled, and the claimant duly excepted.

After the overruling of his demurrers, the claimant, in support of his motion, introduced in evidence the writ of attachment issued by the sheriff of Lawrence county, and an instrument showing the levy under said writ by George S. Weaver,...