Christian & Craft Grocery Co. v. Michael

• Decision Date: 04 April 1899
• Citation: 121 Ala. 84,25 So. 571
• Court: Alabama Supreme Court
• Parties: CHRISTIAN & CRAFT GROCERY CO. v. MICHAEL ET AL.

25 So. 571

121 Ala. 84

CHRISTIAN & CRAFT GROCERY CO. v. MICHAEL ET AL.

Supreme Court of Alabama

April 4, 1899

Appeal from circuit court, Monroe county; John C. Anderson, Judge.

Action by Michael & Lyons against the Monroe Mill Company. Plaintiffs obtained judgment, and issued execution, and the Christian & Craft Grocery Company interposed a claim to the property levied on. Judgment for plaintiffs, and claimant appeals. Affirmed.

This was a statutory claim suit. Appellees, Michael & Lyons obtained judgment in the city court of Mobile against the Monroe Mill Company on the 20th day of April, 1896, in the sum of $879.40 and costs. Execution was issued thereon, April 21, 1896, and placed in the hands of the sheriff of Monroe county on the following day, and on May 7, 1896, that officer levied the same upon the logs and timber now in question, as the property of the defendant. The Christian & Craft Grocery Company thereupon interposed a claim to the property levied upon, made affidavit, gave bond, and obtained possession from the sheriff thereunder, all in exact accordance with the statute. At the trial issue was joined between the plaintiffs and the claimant as to whether the property "was subject to the levy of the execution issued at the suit of the plaintiffs against the Monroe Mill Company." Appellant claimed under a mortgage from the defendant in execution. Subsequent to the execution of this mortgage, but prior to any default thereunder, the mortgagor, the Monroe Mill Company, became indebted to the plaintiffs by the nonpayment of certain drafts in the full sum of the execution, which was levied upon the property in question, and on the 20th day of April the plaintiffs obtained a judgment against the mortgagor upon such indebtedness, caused an execution to be issued thereon, and levied upon the logs and timber in question; and thereupon the mortgagee, present appellant, the Christian & Craft Grocery Company, filed a claim for such property, and thereupon this trial was had. The property at the time of the levy was found in the possession of the mortgagor, defendant in execution, and it was admitted that it was the defendant's property, the claim being based entirely upon the mortgage. There was no evidence tending to show that this property was no hand at the time of the execution of the mortgage, or at the time of, or prior to the default in the conditions of the mortgage. The evidence for the claimant showed substantially the following facts: On the 1st day of August, 1895, the Monroe Mill Company, a corporation doing business in Monroe county, executed and delivered to Christian & Craft Grocery Company, a corporation doing business in Mobile, a mortgage, upon the recited consideration of $10,000, conveying its sawmill plant and a large body of lands situated in Monroe county. Said mortgage also contained a provision in the following words: "Also all of the logs, timber, lumber, and other manufactured wood products that the said Monroe Mill Company may own, or have on hand, at the time of, and subsequent to, any default that may accrue under the terms of this instrument." On or about the 15th day of April, 1896, and after default by the mortgagor, John Craft, the vice president and agent of appellant, went to the mill of the Monroe Mill Company, and in the name of appellant took possession of all of the logs lumber, and manufactured timber at said mill, on account of the debt due to it, and gave directions to the employés including the general manager of the Monroe Mill Company, to keep said logs and timber separate from other logs and timber coming to said mill, and to ship said logs and timber at once to Mobile, as the property of appellant. The execution, and the return of the sheriff thereon, were introduced in evidence without objection. During the examination of the witness, R. W. Stoutz, he testified that the city court was in session the day upon which the execution was issued. Thereupon the claimant moved the court to exclude the execution from the evidence, "because it had not been shown that the affidavit required by law before the issuance of the execution before the adjournment of the court had been made." The court overruled this motion, and the claimant duly excepted. Upon the introduction of all the evidence, the court, at the request of the plaintiffs, gave the general affirmative charge in their behalf. To the giving of this charge the claimant duly excepted. There were verdict and judgment for the plaintiffs. The claimant appeals, and assigns as error the ruling upon the evidence, to which exception was reserved, and the giving of the general affirmative charge requested by the plaintiffs.

McIntosh & Rich, for appellant.

Gregory L. & H. T. Smith, for appellees.

DOWDELL J.

The claimant, on the trial in the court below, asserted title to the property in question, levied on by plaintiffs as the property of the defendant in execution, under a mortgage executed by defendant to claimant. The plaintiffs, having proved their debt against the defendant, and the levy of the execution on the property in defendant's possession, made a...