Kaplan v. Potera

• Decision Date: 11 June 1925
• Docket Number: 6 Div. 305
• Citation: 105 So. 177,213 Ala. 334
• Parties: KAPLAN v. POTERA et al.
• Court: Alabama Supreme Court

105 So. 177

213 Ala. 334

KAPLAN v. POTERA et al.

6 Div. 305

Supreme Court of Alabama

June 11, 1925

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Harry Kaplan against Joe Potera and others. From a decree on demurrer, complainant appeals. Affirmed.

London Yancey & Brower and Clara Cain, all of Birmingham, for appellant.

Lange &amp Simpson, of Birmingham, for appellees.

THOMAS J.

The appeal is from a decree sustaining demurrer to the bill.

Acts 1915, p. 270, amending sections 4079 and 4080 of the Code of 1907, prescribed that, unless otherwise directed, the clerk must issue execution on all judgments in favor of the successful party as soon after the time prescribed for the issuance of said execution by law as is practicable, and did not deprive the owner of a judgment of the right to direct that execution not issue thereon. 23 Cyc. 1427; 34 C.J. 658. The words "unless otherwise directed," according to Judge Stone, had reference to a judgment which on its face directed a stay of execution, or where the plaintiff in judgment, or the owner thereof or his attorney of record, directed to the clerk not to issue execution within the time prescribed. Davidson v. Wiley, 31 Ala. 452. Such of necessity is the true interpretation of the statute obtaining as to the respective rights of the parties to the judgment. The dictum in Henderson v. Planters' & Merchants' Bank of Ozark, 178 Ala. 420, 59 So. 493, is to the contrary.

The construction of the statute given by Judge Stone finds analogy in Golding v. Hall, 9 Port. 169, declaring, in an action in trespass, where defendants severed their pleadings and separate verdicts were had, that the plaintiff must elect against which of defendants he will have execution, as he can have but one satisfaction, and the other defendants will be entirely discharged by the payment of the damages by the one against whom the plaintiff elects to proceed. And in Blann v. Crocheron, 20 Ala. 320, where the injured party has recovered separate judgments against defendants, it is held the right to elect against whom to proceed is exercised and determined by his suing out execution or acceptance of satisfaction from one of the judgments. So also is there analogy contained in the reason for the rule that the acceptance of satisfaction of a judgment against one of joint tort-feasors is a bar to further proceedings against the other tort-feasors, except for costs. Jones v. Russell, 206 Ala. 215, 89 So. 660; McCoy v. L. & N.R. Co., 146 Ala. 333, 40 So. 106; Vandiver v. Pollak, 107 Ala. 551, 19 So. 180, 54 Am.St.Rep. 118; Thompson v. Lassiter, 86 Ala. 536, 6 So. 33; Fitzgerald v. Campbell, 131 Va. 486, 109 S.E. 308, 27 A.L.R. 810, 812, 819; and Hudson Trust Co. v. Elliott, 194 Ala. 441, 69 So. 631, holding that the judgment creditor, having fixed his lien on the property of the party primarily liable, and sufficient for the satisfaction, is not permitted (in equity) to prohibit execution on the judgment to prevent collection from such primary liability, and thereafter collect from him who is secondarily liable. The foregoing authorities are sufficient to show there was the field of operation for the statute as stated by Judge Stone.

The averments of the bill do not show that the suit was improperly brought, or that notice or process was not served on the defendant, that no attorney for defendant appeared, and the averment that the insurance company lost or mislaid the summons and complaint by reason of no fraud, accident, or mistake, attributable to the plaintiff in judgment, is not sufficient. When the case was called, no rule of practice or of law prevented the judgment with the writ of inquiry duly executed. The plaintiff in the suit at law, appellee here, by attorney, had the right, within the law, to allow execution to issue on the judgment or to stay the same, to file his judgment, as provided by law, and perfect a judgment lien. Having taken the latter course in fixing a lien on defendant's properties subject to levy under execution, plaintiff had the right, as the owner of the judgment, to issue execution at any time within the law obtaining in the premises, or to release his lien by agreement or operation of law. Morris et al. v. Waldrop et al. (Ala.Sup.) 105 So. 172. The latter observation is not prompted by the instant pleading, but is merely adverted to as an analogy or reason for the construction given the statute of force when the judgment was obtained and the exercise of the right of ownership over the judgment of which complaint is made.

The judgment is averred to have been taken on April 28, 1924. The Code of 1923,...