Gaines v. Malone

• Decision Date: 12 March 1942
• Docket Number: 4 Div. 209.
• Citation: 242 Ala. 595,7 So.2d 263
• Parties: GAINES v. MALONE.
• Court: Alabama Supreme Court

7 So.2d 263

242 Ala. 595

GAINES v. MALONE.

4 Div. 209.

Supreme Court of Alabama

March 12, 1942

Rehearing Denied April 16, 1942.

Appeal from Circuit Court, Houston County; D.C. Halstead Judge.

L.A Farmer, of Dothan, for appellant.

John W. Rish, of Dothan, for appellee.

LIVINGSTON, Justice.

This cause was submitted on motion to dismiss the appeal and on the merits.

The cause was commenced in the Circuit Court of Houston County Alabama, by the petition of F.M. Gaines, the appellant, filed under and by virtue of the provisions of section 6682, Code of 1923, Title 13, section 128, Code of 1940, which reads as follows:

"The circuit court has power after final judgment:

"To correct any error in fact in the judgment or process apparent upon the whole record.

"To secure parties or privies in their rights against any oppression or abuse of execution, or other process, or upon any release, discharge, or payment after judgment."

In substance the petition alleges that on the 19th day of September, 1933, the Federal Reserve Bank of Atlanta Georgia, a corporation organized under the laws of the United States of America, recovered a judgment against petitioner in the Circuit Court of Houston County, Alabama, at law, for the sum of $19,179.08 and cost of court: that a certificate of judgment was duly recorded in the probate office of Houston County, Alabama, on the 27th day of September 1933; that on February 17, 1941, after several mesne transfers, the judgment was transferred and assigned to L.B. Nichols; but the petitioner avers, on information and belief that the transfer was without consideration or that the agreed consideration has not been fully paid; that on the 17th of February, 1941, the said L.B. Nichols caused an execution to be issued out of the Circuit Court of Houston County, at law on said judgment commanding any sheriff of the State of Alabama to make out of the goods and chattels, lands and tenements of the petitioner, the sum of $19,179.08, the original amount of the judgment, and $13.05 cost of suit together with interest from September 19, 1933. That in obedience to the mandates of the execution, the sheriff of Houston County has advertised for sale on the 14th day of April, 1941, certain property, specifically set out in exhibits to the petition, belonging to petitioner; and that the judgment has been fully paid, or reduced to a very small amount, which amount petitioner offers and agrees to pay as soon as the same has been ascertained by the court. Petitioner prays that a writ of supersedeas be immediately issued by the court, directed to the sheriff commanding him to desist from enforcing the execution, and to stay the sale of petitioner's property until the final hearing of the petition; that the court determine the amount, if any, due on the judgment; that the sale of petitioner's property be permanently stayed if the court finds that the judgment has been paid in full, or that petitioner be allowed to pay any amount found to be due on the judgment, and for general relief.

The court set March 31, 1941, for oral hearing of the petition, but so far as the record discloses no evidence was introduced on the hearing. On that day the court entered an order or judgment in part here material, as follows:

"Taking the allegations of the petition herein considered to be true the court is of the opinion that the petitioner is entitled to a writ recalling the execution and staying proceedings thereon, pending the determination of the things and matters alleged in said petition, but, that, as a condition precedent to the issuance of such writ, the petitioner must make bond (in) and double the amount of the execution, payable to the defendant and conditioned as provided by law.

"Counsel for defendant, being present in open court at this hearing stated, in open court and before the court, that the judgment which is the basis of the execution is entitled to certain credits, and that when said credits are made, he admits that only a balance of...