Ex parte McFry

• Citation: 218 Ala. 21,117 So. 464
• Decision Date: 18 June 1928
• Docket Number: 7 Div. 810
• Parties: Ex parte McFRY.
• Court: Alabama Supreme Court

117 So. 464

218 Ala. 21

Ex parte McFRY.

7 Div. 810

Supreme Court of Alabama

June 18, 1928

Original petition of R.W. McFry for mandamus to Hon. W.B. Merrill, as Judge of the Circuit Court of Calhoun County. Demurrer overruled.

Rutherford Lapsley, of Anniston, for appellant.

Merrill & Field, of Anniston, for appellee.

GARDNER J.

Mandamus proceeding against Hon. W.B. Merrill, as a judge of the Seventh judicial circuit. The submission here is upon respondent's demurrer to the petition. Briefly stated the petition discloses the following situation: An attachment suit was instituted in a justice of the peace court against one Formby, certain personalty being attached, and to which R.W. McFry, petitioner here, interposed a claim making affidavit and bond, duly filed on July 20, 1927, as provided for trial of a statutory claim suit. Section 10375 et seq Code of 1923. The suit came on to be heard on August 20 1927, in the justice court, and judgment rendered on that day in favor of claimant; the plaintiff in the original suit having dismissed same and paid the cost. On the same day, and before the judgment was so rendered, one O.L. Stewart filed in the cause affidavit and bond as a second claimant to the property, and the court, in entering judgment for claimant McFry, also ordered the claim suit of said Stewart disallowed and stricken from the files. No appeal was taken by Stewart within five days (section 8777, Code of 1923), but, after the expiration of such time, he filed bond for appeal, and the justice certified the cause to the circuit court, where it is now upon the docket. McFry appeared in the circuit court to move to dismiss the appeal of Stewart, but that motion is yet undetermined. Stewart subsequently filed a petition, in statutory form, for a removal of the cause to the equity side of the docket. Sections 6488-6490, Code of 1923. McFry's motion to strike this petition for removal was denied, and this proceeding followed for a review of such ruling.

Petitioner insists there was no legal authority for the justice to certify the cause to the circuit court or for the clerk of the latter court to docket the same, and, as an interested party to the judgment rendered, he had a right to have the cause dismissed from the circuit court. He insists that court is without jurisdiction, for the reason that there is no provision for a second claim suit for the same property in the same cause, and for the further reason that, even conceding such a proceeding, the appeal was not perfected within the statutory time, and hence the cause should be dismissed, and that his motion to strike the motion for a removal should have been granted.

Upon the question of the appeal not being taken within time, the following language of this court in Frohlichstein v. Jordan, 138 Ala. 310, 35 So. 247, is here pertinent:

"If the appeal was not claimed within five days, the justice had no authority to grant it, and, if he should have done so, it would have been liable to be dismissed on it so appearing in the court to which it was taken."

See, also, Burgin v. Ivy Coal Co., 127 Ala. 657, 29 So. 67.

From the averments of the petition, therefore, upon a consideration of the motion to dismiss the attempted appeal by Stewart, the same should be granted, and, as of consequence, the court should not transfer the cause to the equity docket, thus giving force and effect to an abortive appeal.

Upon McFry interposing his claim to the property levied on "giving bond for its forthcoming, the property is regarded as in the custody of the law, until the claim suit is determined." ...