Jaffe v. Leatherman

• Decision Date: 04 December 1930
• Docket Number: 6 Div. 474.
• Citation: Jaffe v. Leatherman, 222 Ala. 326, 131 So. 902 (Ala. 1930)
• Parties: JAFFE ET AL. v. LEATHERMAN.
• Court: Alabama Supreme Court

131 So. 902

222 Ala. 326

JAFFE ET AL. v. LEATHERMAN.

6 Div. 474.

Supreme Court of Alabama

December 4, 1930

Rehearing Denied Jan. 29, 1931.

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action of detinue by F. A. Leatherman against Ben Jaffe. From a judgment for plaintiff, defendant and his sureties on replevy bond appeal.

Reversed and remanded.

BROWN and GARDNER, JJ., dissenting.

Jas. H Bradford and Richard H. Fries, both of Birmingham, for appellants.

William S. Pritchard, J. D. Higgins, and J. W. Aird, all of Birmingham, for appellee.

THOMAS J.

The bill of exceptions sought to be established was stricken. 221 Ala. 178, 128 So. 449.

Under the law the defendant and his sureties on the replevin bond were duty bound to deliver the property in question within thirty days after rendition of the judgment in favor of the plaintiff on December 17, 1928. The trial court held that they had failed in that duty, and that plaintiff was entitled to recover of such obligors the alternative value of the property as fixed by the judgment of the court rendered on the foregoing date. We have no bill of exceptions to look to as to any controverted question of fact as to the delivery vel non.

Under the statute, §§ 7389, 7394, Code, the defendant was required to deliver the property to the successful party. Carroll v. Burgin et al., 159 Ala. 406, 48 So. 667. The statute places the duty upon the sheriff to make return of the fact of failure to deliver the property, and to pay the damages assessed for the detention thereof within the time prescribed. Section 7394, Code. See Howard v. Deans, 151 Ala. 608, 44 So. 550.

Was the indorsement of the sheriff on the replevin bond not null and void, and was a return of the fact of failure by defendant and sureties to deliver the property as required by law? The return made was as follows:

"Thirty days having expired since judgment was rendered in this cause, the property herein replevied not having been delivered to the sheriff by either the defendant or his sureties this bond is hereby declared forfeited this Feby 26th, 1929.

"W. O. Downs, Sheriff.

"E. B. Turner, D. S."

The condition of the bond was to plaintiff, and the requirement was to deliver the property to plaintiff. Section 7389, Code; Ex parte White, 209 Ala. 95, 95 So. 495.

In Jesse French Piano & Organ Co. v. Bradley, 143 Ala 530, 535, 39 So. 47, 48, where there was timely delivery to the sheriff, who refused to receive the piano on solicitation of the defendant, the court said: "The petition avers a delivery of the piano, the property replevied, or what was equivalent thereto, an offer to deliver and a refusal by the sheriff to receive the same; and this within 30 days after the judgment of affirmance by this court. On the facts averred in the petition, and which were confessed on demurrer, it was the duty of the sheriff to have received the piano, and made return on the bond of the fact of the delivery, in accordance with the directions in the statute. This the sheriff did not do, but instead thereof returned the bond as forfeited in toto."

In Carroll v. Burgin et al., 159 Ala. 406, 409, 48 So. 667, 668, is the observation that: "As before stated, the condition of the bond is that the defendant will 'deliver the property to the plaintiff' (section 3780, Code of 1907); and, while it may be true that, if the property is tendered to the sheriff, it would be his duty to take it and turn it over to the plaintiff, it is difficult to see how the plaintiff could be damaged, in the loss of the property, by the sheriff's act, when the property was tendered to him in accordance with the conditions of the bond, and he refused to receive it. The case of Jesse French, etc., Co. v. Bradley was an action by a party who had given the bond to supersede an execution; the gravamen of the action being that the property was delivered or tendered to the sheriff, and he, in place of returning that fact, as required by the statute, returned the bond as forfeited in toto. 143 Ala. 530, 535, 39 So. 47."

The duty of the sheriff in the premises was ministerial and may be compelled by mandamus in a proper case. Garrett v. Cobb, 199 Ala. 80, 74 So. 226.

By analogy the holding of this court in proceedings for scire facias to revivor of judgments and issue of executions thereon (Quill v. Carolina Portland Cement Co., 220 Ala. 134, 124 So. 305; Mobile Drug Co. v. McCullough et al., 215 Ala. 682, 112 So. 238), the return of the sheriff, execution thereon, and motion to quash the same, were proceedings in the original cause and in the continuation thereof to statutory compliance on and after execution on forfeiture.

The motions or orders in question were the proper way to raise the question of the legal effect of the return. Harrison v. Hamner, 99 Ala. 603, 12 So. 917. They are now to be more specifically recited, and the legal effect thereof to be indicated by this court.

The motion as amended was to quash the return of the sheriff, and there was judgment thereon, and the same was "overruled and denied," and the exception is noted by the court. The adverse party had theretofore answered the motion and denied the facts averred, and raised an issue of fact as to delivery vel non.

The record further shows the amendment of the motion of date August 2d, and was made a rehearing and renewal or refiling of motion to quash the return, etc., and accompanied it with affidavits touching the fact of redelivery of the property replevied. The adverse parties moved to strike and demurred, and the court entered an order as follows: "It is ordered and adjudged by the Court that said motion as amended be and the same is hereby overruled, and movants except."

The court had theretofore, on June 26, 1929, ordered:

"*** The motion as amended having been heretofore argued and submitted to the Court, and the same having been fully considered and understood by the Court, and it appearing from the evidence that immediately following the rendition of the consent judgment in this Court, for possession of the organ in question, that defendant Ben Jaffe told the plaintiff

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