Huett v. Nevins

• Decision Date: 11 January 1951
• Docket Number: 5 Div. 504
• Citation: 255 Ala. 37,50 So.2d 160
• Parties: HUETT v. NEVINS, Sheriff.
• Court: Alabama Supreme Court

Page 160

50 So.2d 160

255 Ala. 37

HUETT v. NEVINS, Sheriff.

5 Div. 504.

Supreme Court of Alabama.

Jan. 11, 1951.

J. B. Atkinson, of Clanton, for appellant.

Omar L. Reynolds, A. B. Foshee and Reynolds & Reynolds, all of Clanton, for appellee.

FOSTER, Justice.

This is an appeal by plaintiff in a summary proceeding against the sheriff of Chilton County for the failure to collect an execution issued on September 17, 1948. The sheriff, in response to the petition for a summary judgment, filed an answer setting up the facts with respect to the issuance of the execution and the reasons why it had not been collected. Those facts are substantially as follows: At the October Term 1944, this appellant obtained a judgment in the Circuit Court of Chilton County for the sum of $1500 and costs. A certificate was filed in the office of the judge of probate of Chilton County, as authorized by section 584, Title 7, Code, and an execution was issued on said judgment on July 16, 1948, and put in the hands of the appellee, as sheriff of Chilton County, for execution. On July 16, 1948, the said sheriff levied said execution upon the property and advertised the same for sale, said sale to be had on August 2, 1948. On July 17, 1948, the defendant in execution, one Tommie Fox, executed a replevin bond with S. J. Sexton and N. W. Latham as sureties, as authorized by section 562, Title 7, Code. On July 30, 1948, the defendant in execution filed a voluntary petition in bankruptcy and on that day was adjudged a bankrupt. On August 2, 1948, the date set for the sale of said property, the sheriff was informed by the attorney for defendant Fox of said adjudication in bankruptcy. On that day the defendant Fox had said property in Clanton, the county seat of the county, and was ready to deliver the same to the sheriff for sale, but the sheriff did not sell it on account of said bankruptcy proceeding. But on that day the sheriff marked the replevin bond 'forfeited' on account of a breach of the condition of same to have said property present under the terms of the bond and that said entry of forfeiture on the bond was made by the sheriff upon the advice of the attorney of record for the plaintiff. The sheriff again advertised said property for sale, the sale to occur on August 30, 1948, without any new execution issuing and without other authority from the court. On August 16, 1948, this appellant filed a petition in the bankrupt court and prayed said court for an order permitting him to proceed through said circuit court or otherwise to enforce his lien against the estate of said bankrupt, and claimed that his lien resulted from the recorded judgment hereinabove mentioned. On that date the referee in bankruptcy made an order granting his petition. The sale occurred as advertised on August 30, 1948, and at said sale this appellant was present during the time and other bidders participated in it. The property was present and in the same condition and of the same value as it was on August 2d. At said sale one Harry Fox purchased the truck for $850.00 and this appellant purchased the mule for $25.00. Reports were made of the sale and the net amount, after payment of the costs, was paid to the plaintiff's attorney of record. The amount received from the sale of said property was not sufficient to pay the judgment in full and thereafter, on September 17, 1948, the clerk of the circuit court issued an execution and put it in the hands of the sheriff, as hereinabove referred to. For the failure to collect it this proceeding was prosecuted, as we have stated. Said execution is claimed to have been issued by virtue of section 563, Title 7, Code, upon the entry of forfeiture on the replevin bond by the sheriff. The execution was not against Fox, the defendant, but was only against Sexton and Latham, the sureties. The execution recites that they are sureties on a forthcoming bond of the defendant Fox, and he was required to collect the balance of the judgment which this appellant has recovered of them on July 16, 1948, by judgment of the Circuit Court of Chilton County.

The facts, as substantially alleged above, are set forth in the answer of appellee as sheriff of said county as a defense against the summary judgment sought to be recovered against him. The statute, which provides for the summary judgment, section 595, Title 7, Code, makes no provision for the pleading and procedure to be had under this authority.

We assume it to be true therefore that any matter which would be a good defense either legal or equitable could well be set up in the answer.

The court overruled the demurrer to the answer and plaintiff took a non-suit, and has here assigned as error the judgment of the court in overruling the demurrer. The demurrer is on very general grounds. It is doubtful if it is more than a general demurrer forbidden by statute. Section 236, Title 7, Code; State, ex rel. Denson v. Howze, 247 Ala. 564, 567, 25 So.2d 433; Louisville & Nashville R. R. v. Nolen, 251 Ala. 445, 37 So.2d 912.

The parties on this appeal have argued the merits of the answer, although they question the sufficiency of the demurrer to present all of the matters argued. We will treat the appeal on its merits without passing on the sufficiency of the demurrer.

As against the execution, which it is claimed the sheriff failed to collect justifying the proceedings here instituted, it was the privilege of the sureties on the bond against whom the execution issued, if they had seen fit to do so, to sue out a writ of supersedeas in the same court in which the execution issued to determine the validity of the execution, section 522, Title 7, Code, and whether it was the duty of the sheriff to collect the money on it by reason of the contentions which are made in his answer to the petition for a summary judgment.

We have a line of cases holding that the relief by way of supersedeas is equitable in nature and usually rests on facts occurring subsequent to the original judgment. Gravett v. Malone, 54 Ala. 19; Campbell v. Byers, 6 Ala.App. 292, 60 So. 737; Henderson v. Planters & Merchants Bank of Ozark, 178 Ala. 420, 59 So. 493; Ex parte Brickell, 204 Ala. 441, 86 So. 1; Merrill v. Travis, 248 Ala. 42, 26 So.2d 258.

No one having pursued that remedy it is available to the sheriff to have the benefit of the same contentions which would support the supersedeas, Hallett v. Lee, 3 Ala. 28; 57 Corpus Juris 944, note 54, also page 988, section 714; and therefore we will treat the matters set up in his answer as though they were presented by petition for supersedeas which is sufficient to allow him the benefit of any equitable claim, such as estoppel, which may have arisen subsequent to the judgment on which the execution was issued. We pause here to observe that the defense set up in this case does not go to or behind the judgment rendered as in Ward v. Deadman, 124 Ala. 288, 26 So. 916; Martin v. Hall, 70 Ala. 421.

The appellee sheriff, through his counsel, has summarized the defense set up in the answer in five numbered paragraphs, and we will treat them in that order. They are as follows:

'1. The lien of execution and levy was discharged by adjudication of bankruptcy of defendant within four months of levy.

'2. Obligors on forthcoming bond to deliver property only were released by bankruptcy of principal.

'3. Plaintiff was estopped by acts in bankruptcy court in having property released and participating in second sale and accepting all benefits from the sale.

'4. The execution issued by the clerk against obligors of forthcoming bond was null and void.

'5. The property under the forthcoming bond was in Clanton ready for delivery to the sheriff, as bond provided.'

1. The lien of the execution was not discharged by the bankruptcy of defendant, since it had been recorded more than four months. The Bankruptcy Act discharges those which arise from a judgment and levy within four months before filing the petition in bankruptcy. 11 U.S.C.A. § 107, sub. f, section 67, sub. f of the Bankruptcy Act.

The lien of this judgment was obtained by recording a certificate under section 585, Title 7, Code. The lien on account of the levy was by section 521, Title 7, Code.

2. The sureties on the forthcoming bond were not discharged and the bond was not released from the obligation to deliver the property by the subsequent adjudication of bankruptcy against the principal debtor, the lien not having arisen within four months. 7 Corpus Juris 199; 8, Bankruptcy, § 252, P. 914. This rule is different where the lien arose within four months and was discharged by the bankruptcy, Andrews v. Jones, 46 R.I. 141, 125 A. 356, 36 A.L.R. 449; Nicolai-Neppach Co. v. Smith, 154 Or. 450, 58 P.2d 1016, 60 P.2d 979, 107 A.L.R. 1138, the bond not being conditioned to pay a money demand. Young & Co. v. Howe, 150 Ala. 157, 43 So. 488.

The State court had assumed jurisdiction of the property before the adjudication of bankruptcy and when, as here, the lien was not dissolved by it, the jurisdiction of the State court continues unless stayed by the bankrupt court. 8 C.J.S., Bankruptcy, § 261, P. 930; Connell v. Walker, 291 U.S. 1, 54 S.Ct. 257, 78 L.Ed. 613. But its authority to do so was expressly granted in this case by the bankrupt court.

3. In Jemison v. Cozens, 3 Ala. 636, an attachment against Calhoun was levied on slaves. Calhoun replevied them on executing bond. Mrs. Calhoun, defendant's wife, filed a suit in equity claiming them. Her only remedy was in equity at that time. An injunction of the sale was awarded, but later dissolved. The slaves were not delivered, as required by the bond, and it was returned forfeited. An execution was issued on the forfeiture of the bond. Thereafter the surety on the replevin bond delivered the slaves to the sheriff who again levied on...