Gillespie v. McCleskey

• Decision Date: 08 April 1909
• Citation: 160 Ala. 289,49 So. 362
• Parties: GILLESPIE v. MCCLESKEY.
• Court: Alabama Supreme Court

49 So. 362

160 Ala. 289

GILLESPIE v. MCCLESKEY.

Supreme Court of Alabama

April 8, 1909

On Rehearing, May 11, 1909.

On Rehearing.

Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.

Action in detinue by W. H. Gillespie against A. F. McCleskey for goods held by defendant, as sheriff, by virtue of writs of attachment. From a judgment for defendant, plaintiff appeals. Affirmed.

The facts sufficiently appear in the opinion of the court. The following pleas were filed by the defendant: (3) "That on the 12th day of May, 1906, the defendant, as sheriff of Colbert county, levied on the property sued for in this case as the property of E. R. Nelles, under and by virtue of three writs of attachment issued out of the circuit court of said county by J. H. Simpson, clerk of said court; one of said attachments being in favor of the Merchants' Bank, a corporation, for the sum of $740, one in favor of E. L Bickley for $540, and one in favor of E. L. Bickley for $232.20--and that he, as sheriff, holds such property under and by virtue of said writs of attachment and levies thereunder. That said attachments in favor of E. L. Bickley are for rent of the house in which said goods are situated and said Bickley has and claims a lien on said property for the amount of $782.20, and that said goods are now and were in the house owned by said E. L. Bickley, and that said rent is due and unpaid, and that said Bickley has a lien for rent on said property for said amount, and said property is subject to said attachment in favor of E. L. Bickley. That this defendant does not hold the property sued for individually, but as sheriff of said county, under and by virtue of the writs and levies as above set forth." (4) Same as 3, down to and including the words "clerk of said court," and adds: "That both of said attachments are in favor of E. L. Bickley, one for $540 and the other for $242.20, and that he, the defendant, as such sheriff, levied upon and held such property as the property of E. R. Nelles, defendant in the attachment, under and by virtue of such attachment and the levies thereunder. That said property was in the storehouse of E. L. Bickley, and that the said E. L. Bickley had a landlord's lien on said property for the rent aforesaid at the date of said levy, and said goods were in the storehouse of said E. L. Bickley, and owned by the said E. L. Bickley, and stored there, at the date of said levy of said attachment, and had never been elsewhere from the date of their purchase by said E. R Nelles, and had enjoyed the protection of the same without the payment of the rent to said E. L. Bickley, and that said rent was due and unpaid, and said goods were liable for the payment of said rent." (5) Same as 3 and 4, except that it alleges that Bickley's lien is superior to all except those for taxes, and alleges the further fact that Bickley recovered of Nelles in the circuit court of Colbert county on the 21st day of June, 1906, two judgments for the rent of said storehouse in which said goods were and had been situated, one for $605.11 and the other for $244.64, together with the costs. The sixth plea is similar in all respects to the third plea.

The following charges were requested by the plaintiff and refused: (1) "If the jury believe from the evidence that the consideration for the $500 note, or of the two notes of $250 each, if two notes were given, was the $500 note due by Webb to Bickley, then your verdict should be for the plaintiff." (2) "If the jury believe from the evidence that Webb owed Bickley a $500 note, and that that was the consideration for the note or notes executed by Gillespie to Bickley, then your verdict should be for the plaintiff." (4) "If the jury believe from the evidence that the consideration for Gillespie's note of $500 to Bickley, which was assumed by Mr. Nelles, was a $500 note which Bickley held against Webb, and had marked 'Paid,' and had given to Mr. Rather, then your verdict should be for the plaintiff." (5) "Under the law governing this case, plaintiff's title to the property is superior to the attachment of E. L. Bickley for rent accruing after Nelles bought the stock of goods, and is also superior to the attachment claims of the Merchants' Bank; and if you believe from the evidence that the consideration for the note or notes given by Gillespie to Bickley was a debt of that amount which Webb owed Bickley then your verdict should be for the plaintiff." (6) Affirmative charge for the plaintiff. (7) "If the jury believe from the evidence that the goods attached and sold by the sheriff were sufficient to pay the rent which accrued after Nelles purchased the stock of goods, then plaintiff's claim to the property is superior to the claims for rent which accrued after Nelles bought the goods; and if you further find from the evidence that the consideration for the note made by Gillespie to Bickley was a $500 Webb note, which Bickley marked 'Paid' and gave to Rather, then your verdict should be for the plaintiff." (8) "If the jury believe from the evidence that the note of $500, or the two notes, if two notes were given, included a debt which Webb owed Bickley, then your verdict should be for the plaintiff as to the attachment on that note."

Kirk, Carmicheal & Rather, for appellant.

W. L. Chitwood and Almon & Andrews, for appellee.

SIMPSON J.

This action (of detinue) was brought by the appellant against the appellee, as sheriff, to recover certain goods which had been levied on under two writs of attachment in favor of E. L. Bickley, who claimed the amounts sued for as due for rent by his tenant, Nelles--one being for back rents, hereinafter referred to, and the other for rents admitted to be due by Nelles. Bickley was the landlord, owning a certain store building in Tuscumbia, used as a drug store. The building was first occupied by Webb, and then by Galloway, who sold out the drug business to plaintiff; and, in giving his notes for the purchase of the stock of goods, plaintiff's note for $500 was given to Bickley on account of that amount of rent which was then due by Galloway, and it was stated in the face of the note that it was for back rent. In other words, while, as insisted by the appellant, this note was, as between plaintiff and said Galloway, a part of the purchase money of the stock of goods, yet, as between him and Bickley, it was an assumption by plaintiff of the amount of $500 due by his predecessors for rent. Subsequently the plaintiff sold out the stock of goods to Nelles (who is the defendant in attachment), and Gillespie says: "I suggested to Nelles to see Bickley and make the same arrangements to carry this note on, and Nelles assumed this debt"--said $500 note being still unpaid. So, under an arrangement between plaintiff, Bickley, and Nelles, said Nelles assumed the payment of said amount of $500 to said Bickley and executed to him his note therefor.

Plaintiff in testifying, says that he did not assume this note as rent, but did assume it as a rent note, and that on Bickley's statement he assumed it as rent. Plaintiff also says that he did not tell Nelles, when he assumed the payment of said $500 to Bickley, that it was a rent debt, though he presumed that Nelles assumed it as a rent debt. Nelles says that he was informed that it was a rent debt, and the note states that it is "for rent of the storehouse past...