Garrison v. Webb

• Decision Date: 31 July 1895
• Citation: 107 Ala. 499,18 So. 297
• Parties: GARRISON v. WEBB ET AL.
• Court: Alabama Supreme Court

18 So. 297

107 Ala. 499

GARRISON v. WEBB ET AL.

Supreme Court of Alabama

July 31, 1895

Appeal from circuit court, Marengo county; James T. Jones, Judge.

Motion by J. V. Garrison to vacate an order directing the proceeds of certain personal property in the hands of the sheriff to be paid over to Sallie C. Webb and another. The motion was denied, and the movant appeals. Affirmed.

Gesner Williams, for appellant.

Taylor & Elmore, for appellees.

HEAD J.

The record brings to view a controversy between two creditors of a common debtor, seeking to collect their claims through the instrumentality of attachment process. On July 21, 1893, J V. Garrison, the appellant, sued out an attachment against Grosjean, Brosius & Hanson for $760, which writ was levied by the sheriff upon certain machinery, etc., found on the sawmill site of the defendants in Demopolis, and on March 7 1894, the plaintiff in the suit recovered a judgment against the defendants therein for $822.20. On August 2, 1893, Sallie C. Webb sued out an attachment, from the court to which the other writ was returnable, against the same defendants, for the sum of $1,000, claimed to be due her, "as landlord for rent of a sawmill and premises attached." This attachment was likewise levied upon the property which the sheriff then had in his possession under Garrison's writ as his return thereon showed. On the 12th of October, 1893, in Mrs. Webb's case, upon her motion, the property having been sold by the sheriff in August, 1893, for $419.25, as perishable or expensive to keep, it was ordered that said sum, less $75, as the probable costs of her suit, be paid to her, upon her executing a refunding bond, payable to the defendants, with the conditions prescribed by section 2960 of the Code. The defendants in attachment resisted the granting of this order, but Garrison was not a party to the proceeding. On March 8, 1894, the day after he recovered his judgment, Garrison, under a caption stating both cases, made a written motion in the circuit court, setting out fully what had occurred, also that the sale had been made under both attachments, and that Mrs. Webb had given the refunding bond required of her by the court's order, and had received the proceeds, with the exception of $75, which had been withheld for probable costs. He also averred that she had no prior lien, and he therein prayed the court to vacate said order made in said cause of Sallie C. Webb, to order the proceeds of said sale under said attachment writs, therefore paid to her, to be paid into court by said Sallie C. Webb, and to further order same paid over to him as a credit on his judgment. As supporting his contention that Mrs. Webb had no lien, he set forth the lease made by herself and husband, John C. Webb, to the defendants in attachment, dated January 11, 1893, and running for five years, whereby, at a rental of $200 per year, they leased to said parties "certain described land and privileges." The land was described by metes and bounds, and the privileges were as follows: (1) To tap a bored well with one pipe, not over one inch in diameter, and, by means of said pipe, to run water from said well, to use exclusively in the sawmill on said property; (2) the right to erect the sawmill on said land, and run same; (3) the right to use the railway track of the lessors from the river for getting up timber; or anything else for use in said mill business; (4) right of way to get to said sawmill, not to exceed 50 feet in width, from the railway track, around the compress and ice house of the lessors, for said railway, if necessary; and (5) the privilege of the landing, and the right to tie rafts, etc., to timber or land across said river from said sawmill site. The motion of Garrison further averred that all the buildings on said lands were erected by the lessees after their entry and possession; that the property levied on was put upon the leased premises, and under a shed erected over the engine and boiler of said sawmill; that one of the buildings consisted of a room 12 by 15 feet, erected by the lessees, and used as an office and storeroom by the lessees in their sawmill business, the shed over the boiler and engine having been also erected by the defendants to preserve same, and these being all the buildings; that the lessees entered under said lease, erected their sawmill and appurtenances, and put the mill in operation. The motion further stated that Mrs. Webb had, at that time, recovered no judgment, all of her debt not having matured. The judgment of the court, under a caption describing both the suits of Garrison and Sallie C. Webb, recites the substance of the motion, states that it was argued by counsel for Garrison and Mrs. Webb, and then orders simply that the motion be overruled. To this ruling of the court Garrison duly excepted.

1. From the foregoing statement of the lease contract between Mrs Webb and the defendants in attachment, referred to in the motion, which the facts contained in the bill of exceptions fully establish, we think it too clear for argument that Mrs. Webb was not "the landlord of any storehouse, dwelling house or other building," within section 3069 of the Code, and hence that she did not have a lien upon the personal property of the tenants found upon the rented premises. There was no building whatever upon the leased land, nor did the lessors erect or agree to erect any, which might serve as "the leading...