Holloway v. Burroughs & Taylor Co.

• Decision Date: 07 May 1912
• Citation: Holloway v. Burroughs & Taylor Co., 58 So. 953, 4 Ala.App. 630 (Ala. App. 1912)
• Parties: HOLLOWAY ET AL. v. BURROUGHS & TAYLOR CO.
• Court: Alabama Court of Appeals

58 So. 953

4 Ala.App. 630

HOLLOWAY ET AL. v. BURROUGHS & TAYLOR CO.

Court of Appeals of Alabama

May 7, 1912

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Action by the Burroughs & Taylor Company against J. T. Beasley and W. H. Holloway on a bond. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The facts sufficiently appear from the opinion. The pleas referred to in the opinion are as follows: (3) "That the property set forth in the complaint was levied upon under and by virtue of a writ of attachment in the cause wherein Burroughs & Taylor Company were plaintiffs and W. C. Parrish was defendant; that at and prior to the date of the levy the said J. T. Beasley, one of the defendants, held and owned a mortgage on the property levied upon, which mortgage was valid and good, and which was recorded prior to the levy of said attachment, and recorded in Geneva county, Alabama where the said W. C. Parrish resided, and where the goods in question were situated; that the amount then due on the debt secured by said mortgage was in excess of the value of said stock of goods and the other property embraced in said mortgage; that upon the levy of the writ of attachment the said J. T. Beasley attempted to claim said property, but failed or neglected to make the affidavit required, but did execute the bond sued on; that said claim suit was not tried but on motion of plaintiff the said claim suit was dismissed on account of failure to make the affidavit, and that the rights of the parties with respect to said property and the claim of Beasley thereto were not adjudicated by the court that, although the property was turned over to Beasley upon the execution of the bond sued on, yet the said Beasley was the owner of said property, as stated therein, and the execution of said bond gave plaintiff no rights of action that the said mortgage was due May 1, 1908, and was for $1,685.13, having been executed December 4, 1907, and covering the property in question. Wherefore defendants say that plaintiff ought not to recover of them." (4) "For further answer to complaint defendants say that J. T. Beasley, at the time of the levy of the writ of attachment on the goods in question, was the owner of said goods by virtue of a valid mortgage on the same, which mortgage, or a copy thereof, is attached hereto and made part of said plea; that the defendant Beasley was in possession of said goods at the time of the levy of the writ, the said W. C. Parrish, defendant in the writ and mortgage, having charge of the same for and as agent of Beasley, and in no other way; that Beasley, when the property was levied on, made the bond in question, and W. H. Holloway was mere surety thereon; that the goods were not subject to the writ, and have not by any judgment of the court been ascertained and adjudged liable to the satisfaction of plaintiff's demand or writ of attachment. And defendants aver that the property covered in the mortgage was not worth the mortgage debt, and that defendant took all the property therein conveyed, and that it did not, at its fair market value, pay said debt." The demurrers raise the proposition that the pleas show that the rights of defendant with reference to said property were adjudicated and settled when said claim suit was dismissed, and that the matters set up in said plea show no defense to the action; and, further, that the facts show no defense which could be made available in the original suit.

W. O. Mulkey, of Geneva, for appellants.

Pace & Chapman, of Geneva and Dothan, for appellee.

WALKER, P.J.

The appellee sued out a writ of attachment against the property of one Parrish, under which the sheriff levied upon property which was then in the possession of the appellant Beasley. The sheriff delivered this property to the appellants, or one of them, upon the execution by them of a bond in double the amount for which the attachment was issued, which was made payable to the plaintiff in the attachment (the appellee here), and was conditioned as follows: "The condition of the above obligation is such that, whereas an attachment issued by J. W. Draughon, clerk circuit court in and for said county, bearing date of the issuance, the 17th day of Mch A. D. 1908, in favor of Burroughs & Taylor Co. against W. C. Parrish, for the sum of $188 dollars, has been levied by J. D. Jenkins, sheriff of said county, upon the following as the property of said W. C. Parrish, to wit: [Here follows a description of the property.] Now, if the said W. H. Holloway shall have the said property above described forthcoming for the satisfaction of the judgment if it be found liable therefor, and pay such costs and damages as may be recovered for putting said claim in for delay, then this obligation to be void; otherwise to remain in full force and effect." This bond was in substantial compliance with the requirements of the statute (Code, § 6039) in reference to the bond to be given when a stranger to the writ claims personal property which has been levied on; and it was by the officer making the levy returned into court with the writ, as directed by the provision of section 6040 of the Code.

But the claimant failed to comply with the other jurisdictional requirements of the statute (House v. West, 108 Ala. 355, 19 So. 913), by making affidavit by himself, his agent or attorney, that he held title to or a paramount lien upon the property claimed; and, because of his failure to make the required affidavit, his claim to the property was dismissed by the court. After the claim suit was disposed of in this way, a judgment was rendered in the original suit in favor of the plaintiff and against the defendants therein, and the property levied on under the writ of attachment issued in that suit was by that judgment condemned to the satisfaction of it. Thereafter the present suit was instituted on the bond above described; the complaint averring that the condition of the bond has been broken by the failure of the defendants, the obligors therein, to deliver or have forthcoming the property described therein for the satisfaction of the judgment rendered in the attachment suit. The defendants (the appellants here) undertook to defend the suit, on the ground that at the time the writ of attachment was levied on the property, for the forthcoming of which the bond sued on was given, that property was not subject to be levied on under that writ, but was the property of the claimant, or subject to a paramount lien in his favor. The rulings of the trial court were to the effect that this ground of defense was not available to the defendants under the circumstances disclosed by the pleadings and evidence in the case.

The contention in behalf of the appellee is to the effect that any claim by the appellants that the property mentioned in the bond sued on was not subject to be levied on under the writ of attachment was foreclosed by the judgment rendered in the attachment suit. In other words, its claim is that that judgment, rendered in the attachment suit at a time when the claimant was in no way a party to it, was a finding or adjudication that the property described in the bond was liable, within the purview of the provision contained in the condition of the bond to "have the said property above described forthcoming for the satisfaction of the judgment, if it be found liable therefor." We do not think that this position is tenable. We are not of opinion that the claimant, by obtaining possession of the property on the execution of the bond sued on, agreed that the question of the liability of that property to be subjected to the satisfaction of the demand of the plaintiff in the attachment suit might be determined in any proceeding to which he was not a party, and in which he could not be heard. The nature of the proceeding attempted to be inaugurated by the giving of that bond negatives any such conclusion. The execution of the bond evidenced the assertion by a stranger to the writ of attachment of a claim that he had the title to or a paramount lien upon the property levied on. The giving of the bond may be treated as evidencing an agreement on the part of its obligors that the question of the liability of the property mentioned in it to the satisfaction of the demand of the plaintiff in the attachment be tried and passed on in a statutory proceeding (Code, § 6040), in which an issue would be made up between the claimant and the plaintiff in the writ, as the statute under which the bond was given contemplates that that controverted question may be tried in the way for which the statute itself makes provision. Code, §§ 6040, 6041. But the plaintiff in attachment availed itself of the claimant's failure to comply with the other requirement of the statute, that he support his claim by affidavit, to procure a dismissal of the claim, with the result that no issue was made up between the plaintiff in the writ and the claimant; and none of the statutory consequences of the

trial and determination of that issue in the manner provided for ensued.

By a proceeding under the statute (Code § 6039) for the trial of the right of property, the claimant may assert such a claim to the property as he could have asserted by a suit in detinue, if the property claimed had been held by another otherwise than under a judicial process. The statute in effect provides for a suit or proceeding by a stranger to the writ for the recovery of specific personal property levied on under an execution or an attachment. When an attempt to maintain such a proceeding is rendered abortive by the claimant's failure to comply with the requirement of the statute that he support his claim by affidavit, with the result that the claim is dismissed, without any...