Ex parte Krasner

• Court: Alabama Supreme Court
• Writing for the Court: BROWN, Justice.
• Citation: Ex parte Krasner, 32 So.2d 678, 249 Ala. 640 (Ala. 1947)
• Decision Date: 20 November 1947
• Docket Number: 6 Div. 624.
• Parties: Ex parte KRASNER et al. KRASNER et al. v. GURLEY.

32 So.2d 678

249 Ala. 640

Ex parte KRASNER et al.

KRASNER et al. v. GURLEY.

6 Div. 624.

Supreme Court of Alabama

November 20, 1947

Norman and D. Krasner, pro se.

Jas W. Aird, of Birmingham, for respondent.

BROWN Justice.

Common law certiorari by the defendants to review the record and proceedings of the Circuit Court of Jefferson County in an action of unlawful detainer by Gurley Mitchell against Norman and D. Krasner, individually, and doing business as D Krasner & Company. Upon the filing of the petition duly verified the court ordered the writ of certiorari to issue returnable to the call of the second division. In response to the writ the proceedings and judgment of the circuit court had on the 11th day of March, 1947, all subsequent to the final judgment entered at the trial of the action and its affirmance by this court, were filed as a return to the writ and the case was submitted on the motion to dismiss 'the appeal' and quash the writ and on the merits.

The return to the writ considered in connection with the original record on the appeal shows that the plaintiff recovered judgment in the inferior municipal court of Birmingham, a court having jurisdiction of a justice of the peace in certain designated precincts in Jefferson County, for the property sued for and $75.00 for detention. From such judgment the defendants appealed to the circuit court, executing a supersedeas bond to stay the issuance of the writ of possession. The trial in that court resulted in a final judgment for the plaintiff for the property sued for and $260.00 as damages. From that judgment the defendants prosecuted an appeal to this court and executed a supersedeas bond in the form prescribed by the statute with Phoenix Indemnity Company as surety. That judgment was here affirmed. Krasner et al. v. Gurley, 248 Ala. 686, 29 So.2d 224.

Thereafter, on the 11th day of March, 1947, the plaintiff through his attorney appeared in the circuit court and made oral motion that the court ascertain the value of the rent of the premises pending the appeal to this court under the provisions of § 986, Title 7, Code of 1940, and a jury was impaneled to hear the evidence offered on behalf of the plaintiff as to the value of the rent of the premises from July 24, 1946, to December 2, 1946. The jury returned a verdict ascertaining the damages of $260.00 on which the circuit court entered judgment against the defendants (petitioners here) and the surety on said supersedeas bond, Phoenix Indemnity Company, awarding execution for its collection. This latter proceeding eventuating in the judgment of March 11, 1947, was had without notice to the defendants or their surety.

Section 986, Title 7, Code of 1940, is cited by the court in the judgment as authority for this proceeding. That statute first appeared in the Code of 1852 as §§ 2866 and 2867 and was brought into and through subsequent codes up to the Code of 1886 in two sections. In the Code of 1886 said sections were combined in § 3411 of the Code of 1886. Said section has been brought through the subsequent codes and adopted therein without change. Prior to the adopttion of the Code of 1940, it was held by this court in Speer v. Lancaster-Johnson Lumber Co., 214 Ala. 688, 108 So. 746, where a supersedeas bond was given by the defendants to stay a writ of possession pending appeal to the circuit court that that court on the trial de novo should admit evidence and instruct the jury to ascertain the plaintiff's claim pending the appeal. It was there observed:

'Evidence of rental value pending appeal was properly received. This is not a matter involved at the time of bringing suit, and need not be claimed in the complaint. But the claim accrues during the pendency of the appeal by reason of a supersedeas depriving plaintiff of his possession. The statute provides for such a judgment, and as of course it must be based upon evidence. Code 1923, § 8023; Giddens v. Bolling, 99 Ala. 319, 13 So. 511; Crocker v. Goldstein, 209 Ala. 172, 95 So. 873.

'But who is to assess the value of the rents pending the appeal when the cause is tried by a jury? No instructions were given to the jury to assess the value of the rents pending the appeal, and no such assessment was made in their verdict.

'In Spear & Thomasson v. Lomax, 42 Ala. 576, 588, it was expressly held the value of the rents should be assessed by the jury. This case arose under sections 3314 and 3316, Revised Code of 1867. These sections were the same in substance as now, except it was then required that judgment must be entered 'on motion of appellees.' This clause was stricken from the Code of 1907, § 4282, now § 8023, Code of 1923. This change would rather strengthen the idea that all the issues of fact should be submitted to the jury, on whose verdict the judgment of the court is to be entered. The same rule was followed and approved in Helton v. Ft. Gaines Oil & Guano Co., Ala.Sup., 39 So. 925.

'We see no reason to overrule Spear & Thomasson v. Lomax supra, and accordingly hold it was error for the court to enter the judgment for rents pending the appeal without having the amount assessed by the jury.' The jurisdiction and power conferred by said statute has uniformly been held and applied to the circuit...