Cherry-Ellington Auto Co. v. State
| Decision Date | 20 December 1923 |
| Docket Number | 5 Div. 859. |
| Citation | 210 Ala. 469,98 So. 389 |
| Parties | CHERRY-ELLINGTON AUTO CO. v. STATE EX REL. SORRELL, PROS. ATTY. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.
Petition by the State of Alabama, on the relation of G. J. Sorrell Prosecuting Attorney for Tallapoosa County, to condemn one five-passenger Dodge automobile; the Cherry-Ellington Auto Company intervening as claimant. From a decree for petitioner, claimant appeals. Affirmed.
Barnes & Walker, of Opelika, for appellant.
Harwell G. Davis, Atty. Gen., for appellee.
This is a proceeding in equity by petition filed by the state through its solicitor, to have forfeited and sold a five-passenger Dodge automobile on the ground it was being used to transport liquor illegally. Cherry-Ellington Auto Company, a partnership composed of J. E. Ellington and V. P Cherry, filed petition of intervention claiming title to the automobile by retention of title sale contract for the balance of the purchase price, given by W. P. Jerrell, the owner, to them. The court denied claimants' petition of intervention, granted the petition of the state, and ordered the automobile sold as contraband; and this appeal is prosecuted by the claimants from that decree.
That part of section 13, on page 13, of the General Acts of 1919 applicable, reads:
"That all conveyances and vehicles of transportation of any kind, *** on land *** which have been or are used for the illegal conveying of any prohibited liquors or beverages, into this state, or from one point in the state to another point within the state, *** shall be contraband and be forfeited to the state of Alabama." The evidence without dispute disclosed that one Will Hughley was operating this automobile through Tallapoosa county, Ala., traveling the public road towards Montgomery. The deputy sheriff of Tallapoosa county on February 24, 1923, as it was being driven through that county, seized the car and found it contained one keg with ten gallons of whisky. There was evidence tending to show that the automobile and the whisky belonged to W. P. Jerrell. This evidence rendered the car subject to seizure by the sheriff or his deputy, and made it liable to be condemned and sold as contraband. This made a prima facie case for condemnation of the automobile. Carey v. State, 206 Ala. 351, 89 So. 609; Flint Motor Car Co. v. State, 204 Ala. 437, 85 So. 741.
The burden of proof then shifted to the claimants to assert and prove their superior right to the car as vendors in a conditional sale of the car, and to establish by their evidence that they did not at the time of the execution of the conditional sale contract have any knowledge of any design of the vendee to use the car for such unlawful purposes, or of any facts that were reasonably calculated to put them on notice of that intended use of the car. Flint Motor Car Co. v. State, 204 Ala. 437, 85 So. 741.
The claimants sold this car to W. P. Jerrell on January 9, 1923. They knew he was a farmer, lived on his farm, and owned at the time two Dodge cars which he had purchased from them. The...
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