Brightman v. Meriwether

• Decision Date: 11 May 1899
• Citation: 121 Ala. 602,25 So. 994
• Parties: BRIGHTMAN ET AL. v. MERIWETHER ET AL.
• Court: Alabama Supreme Court

25 So. 994

121 Ala. 602

BRIGHTMAN ET AL. v. MERIWETHER ET AL.

Supreme Court of Alabama

May 11, 1899

Appeal from circuit court, Lowndes county; D. K. Middleton, Judge.

Action by W. T. Brightman & Co. against S. R. Meriwether and others for the trial of right of property. Judgment for defendants and claimants appeal. Reversed.

S. R Meriwether and J. D. Reese brought a suit against J. E. Bandy in the circuit court of Lowndes county. On August 18, 1897 there was entered what purported to be a judgment in said cause. This entry, after stating the parties to the suit, was as follows: "August 18. Judgment by default. Writ of inquiry. Damages assessed at $77.65. Waiver of exemptions as to personal property." The clerk of the circuit court treating this entry as a judgment, issued an execution in favor of the plaintiffs therein against J. E. Bandy, which execution was placed in the hands of the sheriff of Lowndes county on September 18, 1897, and on December 14, 1897, the sheriff levied said execution on certain cotton and corn in the possession of said J. E. Bandy. Thereupon the appellants W. T. Brightman & Co., made an affidavit of their claim, and instituted the present suit for the trial of the right of property in and to the property so levied upon. The facts as above stated were proven by the plaintiffs in execution, S R. Meriwether and J. D. Reese. The claimants introduced in evidence a mortgage which was executed on October 15, 1897, by J. E. Bandy to W. T. Brightman & Co., which mortgage conveyed the crops raised by said Bandy during the year 1897; and the claimants proved that, at the time of the execution of said mortgage, the crop of corn and cotton upon which the execution in favor of Meriwether and Reese was levied was ungathered at the time of the execution of the mortgage, and was the same that was conveyed to the complainants by said mortgage, and that nothing had been paid on said mortgage. This was substantially all the evidence in the case. The court gave the general affirmative charge in favor of the plaintiffs, and to the giving of this charge the claimants duly excepted. The claimants also duly excepted to the court's refusal to give the general affirmative charge requested by them. There were verdict and judgment for the plaintiffs in execution. The claimants appeal, and assign as error the giving of the general affirmative charge for the plaintiffs, and the refusal to give the general affirmative charge requested by the...