Jordan Bros. v. Gordon

• Decision Date: 21 June 1913
• Citation: 62 So. 1023,8 Ala.App. 479
• Court: Alabama Court of Appeals
• Parties: JORDAN BROS. v. GORDON.

62 So. 1023

8 Ala.App. 479

JORDAN BROS. v. GORDON.

Court of Appeals of Alabama

June 21, 1913

Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.

Action by M. Gordon, in which execution was levied on property claimed by Jordan Bros. From a judgment for plaintiff, the claimants appeal. Reversed and remanded.

McConnell & Connor, of Center, for appellants.

Hugh Reed, of Center, for appellee.

THOMAS, J.

It is firmly settled by the adjudications of our Supreme Court, and rightfully so on principle, that a plaintiff, in the statutory proceeding known in the legal parlance of this state as "a trial of the right of property" (Code, § 6039 et seq.), must, among the other requisites essential to the making out of a prima facie case, present the process under which the levy on the property in controversy was made; and that, if it appears that this process is upon its face void (not merely voidable), the claimant can take advantage of the fact, and the plaintiff is not entitled to recover; for the reason as given by Judge Stone, in speaking for the Supreme Court in the leading case on the subject, that, the process "being void, the first step cannot be taken by plaintiff in showing a prima facie right of recovery. He falls before he reaches the adversary's works." Jackson v. Bain, 74 Ala. 328. See, also, Nordlinger v. Gordon, 72 Ala. 239; Sandlin v. Anderson, 76 Ala. 403; Schamagel v. Whitehurst, 103 Ala. 260, 15 So. 611; Bradford v. Bassett, 151 Ala. 520, 44 So. 59.

In the present case the process upon which plaintiff relied was absolutely void in that it was an execution which failed to state the name of the plaintiff in whose favor the execution was issued, or in whose favor the judgment, upon which the execution was issued, was rendered. Cooper v. Jacobs et al., 82 Ala. 411, 2 So. 832. The trial court was therefore in error in not sustaining claimants' objection to the execution and in giving the affirmative charge for plaintiff. Authorities supra.

Since the plaintiff never can recover in this suit because of the fact that the execution upon which he relies is void, it is unnecessary to consider the other questions raised by the record. Jackson v. Bain, supra.

The judgment of the lower court is reversed, and the cause remanded.

Reversed and remanded.