Johnson v. Dismukes
| Decision Date | 08 November 1894 |
| Parties | JOHNSON v. DISMUKES. |
| Court | Alabama Supreme Court |
Appeal from city court of Gadsden; John H. Disque, Judge.
Action in justice's court by Thomas L. Johnson against L. W. M Dismukes. There was judgment for plaintiff, on which execution issued; and, the proceedings being certified to the city court, an order of sale was granted thereon. From an order sustaining defendant's motion to vacate this order of sale, as prematurely made, plaintiff appeals. Appeal dismissed.
On March 14, 1894, Thomas L. Johnson recovered a judgment in the justice of the peace court against L. W. M. Dismukes for the sum of $43.64 and costs of suit. On March 22d the justice of the peace issued an execution upon said judgment, and the constable to whom the execution was delivered levied the same upon certain described real estate of the defendant on April 4, 1894; the indorsement of the constable upon the execution reciting that the defendant had no personal property, known to him, subject to said execution. Upon the levy of this execution upon the lands of the defendant, the constable gave him due notice, and returned the said execution, with his indorsement thereon, and said written notice, with the indorsement of service thereon, to the justice of the peace by whom the execution was issued. The justice thereupon made a transcript of the proceedings in the said cause, and certified them to the clerk of the city court of Gadsden on April 9, 1894. On April 11, 1894, during a regular term of the city court, the plaintiff in execution moved the court for an order of sale of the real estate which had been levied upon under said execution. On April 14, 1894, at the same term of the city court, this motion of the plaintiff was granted, and the order of sale was made and entered by the court. On April 21st, L. W. M. Dismukes, the defendant in execution, moved the court to set aside the order of sale theretofore granted by said court on April 14, 1894, upon the grounds, among others, (1) that said order of sale was made without due and sufficient notice to the defendant; (2) that the court was without jurisdiction to render said order of sale; (3) that the justice of the peace did not transmit the papers in the cause to the next term of the circuit court, or other court having like jurisdiction, after the levy of the execution; (4) that the order of sale was granted prematurely, it being granted at the then pending term of the city court, instead of at the next term of the city court after the levy of the execution. Upon the hearing of this motion, at which time the facts as above stated were shown the court granted the motion, and set aside the order of sale which had been previously made by him; and to...
To continue reading
Request your trial
-
Oberhaus v. State
... ... the circuit court, this being the only means by which ... jurisdiction of the motion to sell was given or could be ... acquired. Johnson v. Dismukes, 104 Ala. 520, 16 So ... 2. By ... section 116 of the Constitution of 1901 (Criminal Code, p ... 92), it is provided that ... ...
-
Griffin v. Proctor
...review. This procedural question does not seem to have been expressly dealt with again until the decision in the case of Johnson v. Dismukes, 104 Ala. 520, 16 So. 424, which case an appeal was taken to this court from an order of the lower court setting aside and vacating a judgment of the ......
-
Sparry v. Woodliff
...resulting judgment depends upon a compliance with the requirements of the statute. Moog v. Doe, 145 Ala. 568, 40 So. 390; Johnson v. Dismukes, 104 Ala. 520, 16 So. 424. Appellant contends, for one thing, as we understand her brief, that the judgment rendered by the justice of the peace was ......
-
Witt v. Rosenbush
... ... the statute must appear on the face of the proceedings. Code ... 1923, § 8747; Johnson v. Dismukes, 104 Ala. 520, 16 ... The ... statute requires that "all the proceedings before the ... justice, together with the return of ... ...