Carson v. Rains, 7 Div. 541.

• Decision Date: 30 March 1939
• Docket Number: 7 Div. 541.
• Citation: 237 Ala. 534,187 So. 707
• Parties: CARSON v. RAINS.
• Court: Alabama Supreme Court

187 So. 707

237 Ala. 534

CARSON v. RAINS.

7 Div. 541.

Supreme Court of Alabama

March 30, 1939

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

Petition of Will F. Carson for an order restraining execution of a writ of possession in favor of Ida Carson Rains, as administratrix, with will annexed, of the estate of Nan Ellen Carson, deceased. From an order dismissing the petition petitioner appeals.

Affirmed.

Motley & Motley, of Gadsden, for appellant.

W. T Murphree, of Gadsden, for appellee.

BROWN Justice.

This is an appeal from a decretal order of the Circuit Court of Etowah County, sitting in equity, denying and dismissing the petition of Will F. Carson, praying that Will Lister as constable be restrained "from dispossessing said Will Carson from a place known as the City Club at 112 North 8th Street in the City of Gadsden, under a writ issued from the Justice Court of Edward B. Miller and that notice issue to said Will Lister as Constable requiring him to appear * * * and show cause why he should not be restrained from executing said writ." The grounds upon which said petition is based are thus stated: "That David C. Byrd was appointed and qualified as Trustee under the will of Nan Ellen Carson on the 29th day of January 1938 and that as such trustee under said will he is entitled to the possession and rent of said property; and that said David C. Byrd as such trustee has leased said property to your petitioner for one year, and your petitioner has taken possession of said property under said lease, and the said Will Lister as Constable is threatening to dis-possess your petitioner of the said property so leased by him and claiming that Ida Carson Rains is entitled to the same as administrator. And said Constable is also claiming the sum of $9.45 as costs, which is illegal under the Acts of Alabama, of 1932 [Ex.Sess.] page 164-166. As your petitioner is taxed with $5.00 for executing writ of possession and the Justice has taxed $2.00 for trial, which is not authorized by said Acts or law. Copy of itemized statement is hereto attached. Marked ex. A."

Lister the constable, who appeared and moved to dismiss the petition, stated as grounds for his motion:

"1. For aught that appears therefrom the Constable has a valid order or writ, which he is required to execute under the law.

"2. Said Will Carson cannot avoid the execution of the writ by acquiring any right to the property after judgment therefor.

"3. The facts averred give this court no jurisdiction to issue any restraining order."

The decretal order recites that: "This matter being submitted on the petition of Will F. Carson for an order restraining Will Lister as Constable from dispossessing said Will F. Carson from a place known as the City Club at 112 North 8th Street in the City of Gadsden under a writ issued from the Justice Court of Edward B. Miller, Justice of the Peace in Gadsden; it appears that Ida Carson Rains, the Administratrix with the will annexed of Nan Ellen Carson deceased, has had charge of said property and...