Burns v. Leath, 7 Div. 521.

• Decision Date: 06 October 1938
• Docket Number: 7 Div. 521.
• Citation: Burns v. Leath, 236 Ala. 615, 184 So. 176 (Ala. 1938)
• Parties: BURNS v. LEATH, SHERIFF.
• Court: Alabama Supreme Court

184 So. 176

236 Ala. 615

BURNS v. LEATH, SHERIFF.

7 Div. 521.

Supreme Court of Alabama

October 6, 1938

Rehearing Denied Nov. 10, 1938.

Appeal from Circuit Court, Etowah County; J. H. Disque, Jr., Judge.

Motion of R. K. Lister to quash execution on forthcoming bond returned by R. A. Leath, as Sheriff of Etowah County, in the case of Mack-Roper Motor Company, Plaintiff, v. Mark Cunningham, Defendant.From a judgment denying the motion movant appeals.

Revived on death of appellant, in name of J. A. Burns, as administrator of the estate of R. K. Lister, deceased.

Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

L. B Rainey, of Gadsden, for appellant.

Motley & Motley and Culli, Culli & Swann, all of Gadsden, for appellee.

BOULDIN Justice.

The appeal is from a judgment denying a motion to quash an execution issued upon a forthcoming bond in detinue purporting to be signed by appellant, as surety.The ground of the motion was that movant did not execute the bond; that it was not signed by him nor by any one authorized by him.

A bill in equity for like purpose had been filed, and on appeal to this court was held without equity on the ground, among others, that complainant had a complete and adequate remedy at law by motion to supersede and quash the execution as here sought.

On the trial of the motion movant offered depositions taken on oral examination before the Register in the equity case.The court sustained objections thereto, and movant excepted.No other evidence being offered, the motion was overruled.

The only argument of appellant touching the ruling of the court rejecting the evidence taken in the chancery cause is in these words: "The Court was in error in excluding the testimony in the Chancery case of R. K. Lister v. Mack-Roper Motor Company et al., wherein no point was made by counsel as to the offering of such testimony.(T. P. 12, Lines 3 to 18 inclusively)."

Testimony taken and on file in another cause between the same parties on the same issue is inadmissible in the absence of a predicate showing the witness or witnesses whose testimony is offered are not available for examination at the time of the trial.E. E. Yarbrough Turpentine Co. v. Taylor,201 Ala. 434, 78 So. 812;Adams v. Thornton & Wellborn,82 Ala. 260, 3 So. 20.

Such former testimony when offered as a whole may be rejected if portions thereof are not legal evidence.Louisville & N. R. Co. v. Dilburn,178 Ala. 600, 59 So. 438.

The testimony offered was subject to objection on both these grounds

If above argument be taken to mean there was a waiver of such objections, we think the record does not support this contention.

The bill of exceptions recites: "This motion being submitted on this date, Movant offers in evidence...