Brown, Webb & Co. v. Southern Woodenware Co.

• Decision Date: 01 November 1923
• Docket Number: 8 Div. 593.
• Citation: 98 So. 560,210 Ala. 505
• Parties: BROWN, WEBB & CO. ET AL. v. SOUTHERN WOODENWARE CO.
• Court: Alabama Supreme Court

98 So. 560

210 Ala. 505

BROWN, WEBB & CO. ET AL. v. SOUTHERN WOODENWARE CO.

8 Div. 593.

Supreme Court of Alabama

November 1, 1923

Rehearing Denied Dec. 20, 1923.

Appeal from Circuit Court, Franklin County; Chas. P. Almon, Judge.

Action by the Southern Woodenware Company against Brown, Webb & Co. and others. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under section 6, p. 450 Acts 1911. Reversed and remanded.

W. L Chenault, of Russellville, for appellants.

Engel &amp Mudd, of Birmingham, and Key & Key, of Russellville, for appellee.

MILLER J.

This is a suit by the Southern Woodenware Company a corporation against Brown, Webb & Co., and the individuals composing the partnership. It was commenced in the justice of the peace court for $75.75, due by account. There was judgment for plaintiff, and the defendants appealed therefrom to the circuit court. H. B. Kilpatrick, Hud Rivers, and J. M. Bonner signed as sureties the appeal bond of the defendants to the circuit court. There was jury and verdict in favor of plaintiffs in the circuit court for $71.57 against the defendants. The court rendered judgment on the verdict of the jury against the defendants and the three sureties of the appeal bond for the $71.57 and costs of the cause; and the court directed execution, to be issued only against the sureties on the appeal bond, and execution was by the court stayed as to the defendants until the bankrupt court passed on the application of the defendants for final discharge.

The defendants alone prosecute this appeal from that judgment, by giving supersedeas bond. The defendants are the appellants, and they assign as errors that judgment of the court and that part of the judgment against the sureties of the appeal bond.

We find in the record an appeal bond from a justice of the peace court to the circuit court, a summons and complaint, no pleas, the judgment of the circuit court on the verdict of the jury, no bill of exceptions, supersedeas bond on appeal to this court from the judgment of the circuit court, citation of appeal to the Supreme Court to the plaintiff, and return of the sheriff showing its execution. We also find in the transcript a petition by plaintiff to the judge of the District Court of the United States for the Northern District of Alabama, in bankruptcy, seeking an order to be allowed to prosecute this appeal from the justice court to the circuit court to judgment against the defendant, and the sureties on the appeal bond in the circuit court with stay of execution against the defendants; and averring since the judgment in and appeal from the justice court the defendants had gone into bankruptcy involuntarily; and that they had been adjudicated a bankrupt, but had not secured a final discharge in bankruptcy. We also find in the record an order by the judge of the District Court of the United States for the Northern District of Alabama, granting the foregoing petition and stating and ordering:

"The said petitioner, Southern Woodenware Company, Inc., be, and it hereby is, authorized and empowered to prosecute its suit against said bankrupts in the circuit court of Franklin county, Ala., to judgment provided that such judgment (if the same can so be rendered in the said circuit court) shall contain a stay of execution as against said bankrupts pending the granting of a discharge in bankruptcy, such stay of execution to become permanent upon the granting of a discharge. In the event no such special judgment can be rendered in said court, then this leave is revoked."

This petition to and this order of the judge of this District Court of the United States, Northern District of Alabama, appear in this record, not as certified copies of the original, but as if they might be the originals.

The defendants in this case filed no pleas to the complaint. The right of the judge of this District Court of the United States to issue that order was not presented to or questioned before the trial court by pleas or otherwise. There is no bill of exceptions in this case. It appears the defendants without any pleas went to trial on the complaint before a jury. The jury returned a verdict in favor of plaintiff and against the defendants for $71.57. The court then on the verdict rendered judgment against the defendants and the three sureties, naming them, on the appeal bond, in the following form:

"It is therefore ordered, adjudged, and decreed by the court that the plaintiff, Southern Woodenware Company, have and recover of Brown, Webb & Co., J. R. Brown, W. F. Webb, Sol McBrayer and O. M. Hutcherson, defendants, and H. B. Kilpatrick, Hud Rivers, J. M. Bonner, sureties on their appeal bond, the sum of $71.57, together with cost of this cause for which let execution issue, and against this judgment there should be no claim exemption. Execution to be issued only against the sureties on the appeal bond and is stayed as to Brown. Webb & Co., J. R. Brown, W. F. Webb, Sol McBrayer, and O. M. Hutcherson until the bankrupt court passes on the application of Brown, Webb & Co., J. R. Brown, Sol McBrayer, W. F. Webb, and O. M. Hutcherson for final discharge."

This judgment is before us for our consideration on the record proper, with a good complaint, an appeal bond from the justice cour...