Jones v. Franklin

• Decision Date: 31 January 1887
• Parties: JONES v. FRANKLIN.
• Court: Alabama Supreme Court

1 So. 199

81 Ala. 161

JONES v. FRANKLIN.

Supreme Court of Alabama

January 31, 1887

Appeal from circuit court, Covington county.

Trial of the right of property.

John A Franklin brought his action against John Jones and Sanford Jones, in the circuit court of Covington county, and on March 7, 1883, recovered judgment against the former, failing in his action as to Sanford Jones. Alias execution was issued on this judgment on June 27, 1885, and the sheriff of said county, acting under it, levied on "one bay horse," which was released to Frank B. Jones upon his making affidavit claiming the property, and executing bond as required by statute. Upon the hearing of said trial of the right of property, judgment was rendered in favor of the plaintiff in execution, and this appeal is taken from said judgment. The issue, as presented in the latter case, is that plaintiff "alleged that the horse levied on as the property of J. L. Jones *** is the property of J. L. Jones the defendant in execution, and liable to its satisfaction," and this issue was denied. The testimony as shown by the record, tended to show that the defendant was in possession of the horse at the time of the levy. It further tended to show that, at the time of the levy on the horse, F. B. Jones, claimant, did not claim it, but that it was Sanford Jones', and that the horse was not claimed by said F. B. Jones until after he sold him to one Matthews which was some time after the levy and filing of the claim. The above, and the facts asserted hypothetically in the following charges, was substantially all the evidence introduced. The court charged the jury "that if J. L. Jones, at the time of the levy, was in possession of the horse, and claiming him as his own, and this was shown to their reasonable satisfaction, then the plaintiff was entitled to recover, unless the horse was the property of claimant;" and "that, if J. L. Jones was in possession and claiming the horse at the time of the levy, it is immaterial whose the horse in question is, unless the claimant shows the horse was his property at the time the levy was made." Other charges were given asserting substantially the same principles of law as the above. The claimant excepted to the giving of the above charges, and assigns such action of the court as error.

Gamble & Richardson, for appellant.

SOMERVILLE J.

Our decisions have settled the following rules as applicable to every trial of the right of property, in an issue framed under the statute, between the plaintiff in execution or attachment and the claimant of the property, (Code 1876, §§ 3290, 3343:) (1) The onus of proof is, in the first instance, on the plaintiff to make out a prima facie case that the property levied on is the property...