Foshee v. McCreary

• Decision Date: 13 June 1899
• Citation: Foshee v. McCreary, 123 Ala. 493, 26 So. 309 (Ala. 1899)
• Parties: FOSHEE ET AL. v. MCCREARY ET AL.
• Court: Alabama Supreme Court

26 So. 309

123 Ala. 493

FOSHEE ET AL. v. MCCREARY ET AL.

Supreme Court of Alabama

June 13, 1899

Appeal from chancery court, Conecuh county; W. L. Parks, Chancellor.

Bill for an injunction by J. M. Foshee and others against Robert J. McCreary, George W. Etheridge, and S. L. Tisdale. From a decree dismissing the bill, the complainants appeal. Affirmed.

The bill in this case was filed by the appellants against the appellees. The following facts were averred in the bill: On August 20, 1892, the complainants signed a bond of one J. M Liles, who died before the filing of this bill, to contest with Robert J. McCreary the election to the office of tax collector of Conecuh county, as provided at that time by law. This bond was approved by the probate judge of Conecuh county on the day of its execution. The contest for the office of tax collector of said county between J. M. Liles and Robert J. McCreary was tried before the probate judge of Conecuh county, and decided adversely to said Liles; and from this decision of said probate court Liles appealed to the circuit court of Conecuh county, and on April 24, 1893, said circuit court of Conecuh county decided said contest adversely to said Liles, by dismissing it out of said court. Thereupon, on the 12th day of September, 1893, Robert J. McCreary, as plaintiff, for the use of officers of the court and witnesses, brought suit in the circuit court of Conecuh county against the complainants, as defendants on said bond for the costs in the contest of said election; it being averred in the complaint in said suit that the defendants had failed to pay the costs incurred in said contest. The plaintiff in said suit recovered judgment against the complainants in this bill, and upon said judgment execution was issued, and placed in the hands of the sheriff of Conecuh county for collection. It was then averred in the bill "that said judgment upon which said execution has issued and has been placed in the hands of said sheriff is an accident and mistake, and will work great injuries and will do irreparable wrong and injury to your orators, if said sheriff collects out of your orators money on said execution that there are no witnesses and officers, or witnesses or officers, shown by the records of the probate court of said Conecuh county, or records of the circuit court of Conecuh county, showing to whom said money is to be paid when collected by said sheriff on said execution. And your orators further aver and show that the probate court of Conecuh county and the circuit court of Conecuh county are both courts of record, and that there is no record in either the said probate court or said circuit court showing, in any book or other record required to be kept by law in either the said probate or said circuit court, any witness' or officers' fees charged up in said contest of said John M Liles for the office of tax collector of Conecuh county against said Robert J. McCreary, and that, if said sheriff collects said execution, there are no officers and witnesses or officers or witnesses, for whose use said suit was brought, said judgment obtained, and said execution issued to receive said money." The bill then further averred "that at the time of the institution of the said contest by the said John M. Liles against the said Robert J. McCreary for the said office of tax collector of Conecuh county, and at the time of your orators entering into and executing their said bond for cost of contest in said contest case, and at the time of the approval said bond for cost, and the trial of said contest by the probate judge of Conecuh county, the statute laws of Alabama authorized and gave to said John M. Liles the legal right to institute...