Campbell v. Byers

• Decision Date: 14 November 1912
• Citation: 60 So. 737,6 Ala.App. 292
• Parties: CAMPBELL v. BYERS ET AL.
• Court: Alabama Court of Appeals

60 So. 737

6 Ala.App. 292

CAMPBELL v. BYERS ET AL.

Court of Appeals of Alabama

November 14, 1912

Appeal from Circuit Court, St. Clair County; J. E. Blackwood, Judge.

Supersedeas by Lee Byers and others against A. O. Campbell. From a judgment granting the petition, defendant appeals. Affirmed.

Following is the petition filed by appellees, referred to in the opinion:

"Your petitioners, Lee Byers, R. R. Hodges, and C. R. Robinson who are all of full age, would respectfully represent unto your honor: (1) That on or about the 17th day of April 1909, they entered into a replevy bond to one A. O Campbell, for the delivery of certain personal property therein named, a copy of which bond is hereto attached and marked Exhibit A, and made a part thereof. That at the September term, 1909, of the circuit court of said county, judgment was rendered against said Lee Byers, the defendant in said case, and in favor of A. O. Campbell, for the sum of $50, the value of one of the mules mentioned and described in said bond. That no action was taken on the said bond in any way until the March term, 1911, of said court, at which time the present sheriff of said county by an order of this court returned the said bond forfeited, which return of said sheriff is indorsed thereon. That on or about the _______ day of _______, a summary judgment against your petitioner was entered on said bond, and that on or about the 19th day of April, 1911, the clerk of said court issued an execution on said judgment against your petitioner, and placed the same in the hands of the sheriff of said county, for execution and return, and that said sheriff is about to make a levy on the property of said C. R. Robinson and R. R. Hodges to satisfy the said judgment by a sale of their property. That said bond was ordered forfeited by the court upon the motion of said A. O. Campbell, without any notice to your petitioner, the same having been addressed to R. D. Love, sheriff, etc. (3) Your petitioner further avers and charges that said bond should not have been ordered forfeited by said sheriff for the following reasons: That when the deputy sheriff, A. Crow, seized said property, to wit, knew, the failure to deliver the same for which said bond was forfeited, he took the same into his possession and held the possession of same until the 17th day of April, 1909, the date said bond was executed by petitioner. That immediately after said bond was delivered to the said deputy sheriff as aforesaid, said petitioner Lee Byers went to the lot to take charge of said mule, but found said mule unable to travel, or even to be removed from said lot. That the said mule was then down, and unable to get up, and was in a dying condition, and did die during the night following the afternoon on which said Lee Byers went to take charge of the same, and that the said mule was never delivered to said Lee Byers by the said Crow, who was in possession of the same. The prayer is that notice issue and be served upon said Campbell, requiring him to appear at a time to be named in said notice in said court to show cause why an order should not be made and entered superseding and quashing said execution issued upon said summary judgment, and that the court would make and enter an order and judgment suspending and superseding such execution, to the end that petitioners will not have to pay said judgment so summarily entered against them, that the court will upon such terms and conditions as may appear right and proper grant an order to the said sheriff to return such execution until this motion and petition can be determined, and for such other, further, and general relief as petitioners may be entitled to, the premises considered."

M. M. & Victor Smith and Gardner Greene, all of Pell City, for appellant.

James A. Embry and C. R. Robinson, both of Ashville, for appellees.

PER CURIAM.

A. O Campbell brought an action of detinue against Lee Byers for the recovery of two mules. The plaintiff in the detinue suit made the affidavit and bond authorized by section 3778 of the Code of 1907. The bond was properly approved, and authority to the sheriff to take the property into his possession was duly indorsed on the summons, as provided in said section of the Code. Under the power thus conferred upon him, the sheriff took possession of the property, and the defendant in the detinue suit, said Lee Byers, within the five days provided for in section 3780, executed and delivered to the sheriff the bond provided for in said section 3780, which bond was approved by the sheriff. When the last-mentioned bond was executed and approved, Lee Byers and the deputy sheriff, who had possession of the animals went to the home of the deputy in whose lot the animals were being kept by the sheriff. Byers had with him when he went to said lot two servants, and it was the evident purpose of Byers, when he went to the lot, to get both of the animals, and take them home with him. Upon reaching the lot, it was discovered that one of the animals was down, that it had suffered a serious injury, and not only could not travel, but could not stand up or walk. This being the situation, Byers took the uninjured animal away, and left the injured animal in the lot. The injured animal died in the lot either that (Saturday) night or on the next Monday morning. The trial judge was authorized to find from the evidence in the case that when Byers and his sureties executed and delivered the above-mentioned bond the animal in question was then in a dying condition in the lot of the deputy sheriff, that neither Byers nor his sureties knew anything of this situation when the bond was executed or approved, and that the condition of the animal was unknown to Byers until he went with the deputy sheriff to the lot to take possession of the animal and carry him home. Byers went to the lot of the deputy sheriff to get the animal, and the only reason why he did not take him away when he left with the other animal was because the animal was in the condition above described. It is true that the deputy sheriff testified, to use his language, "that witness told Lee Byers that he could get the mule after Mr. Hodges and Mr. Robinson signed the bond; * * * that witness turned the mule over to Lee Byers; that there were two and Lee took one of the mules off; that said Byers left the mule in controversy with witness; that he wanted witness to keep it for him until the...