Keyser v. Maas

• Decision Date: 21 May 1896
• Citation: 21 So. 346,111 Ala. 390
• Parties: KEYSER v. MAAS ET AL. [1]
• Court: Alabama Supreme Court

21 So. 346

111 Ala. 390

KEYSER v. MAAS ET AL. ^[1]

Supreme Court of Alabama

May 21, 1896

Appeal from circuit court, Butler county.

Action of detinue by Maas & Schwarz against John W. Grant and R. A Lee to recover certain cotton. John J. Keyser intervened as claimant of the property, filed an affidavit and bond, and an issue was formed for the trial of the right of property, as provided by Pamph. Acts 1888-89, pp. 57, 58. There was a judgment entered on a verdict directed by the court in favor of plaintiffs, and claimant appeals. Reversed.

On the trial, as is recited in the bill of exceptions, "the issue was made up under the direction of the court, in which the plaintiffs allege that the seven bales of cotton claimed and the subject of this litigation, belong to and was their property; and, after the plaintiff makes out a prima facie case, then the burden is shifted upon the claimant to show the property belongs to him." The claimant objected to this statement of the issue by the court, and excepted to the court's overruling his objection. Plaintiffs then offered in evidence a mortgage executed by P. Keyser, dated the 20th day of January, 1892, in which the crop of said P. Keyser for the year 1892 was conveyed to the plaintiffs. They also showed that the seven bales of cotton were raised on the places owned or rented by the said P. Keyser. Phillip Keyser claimant's witness, testified that he made the mortgage in evidence to the plaintiffs in 1892; that he is the brother of the claimant; that they worked together in the farming business in the year 1892, on the Watson place, Givens place Compton place, and a part of the Keyser place; that the contract between them was that witness was to furnish the lands, or pay for the rent of same, and claimant was to superintend the farming business, and furnish the service of himself and two sons, and then divide the crops equally after all the expenses were paid for making the same; that claimant got eighteen bales of cotton out of the farming operation, and turned the same over to the plaintiffs; that the seven bales of cotton in dispute were raised by the Keyser brothers during the year 1892, with other cotton; and that these seven bales of cotton were divided, and turned over to the claimant, before the plaintiffs set up any claim to it; and that, after the division was made, witness' part of the joint crop was received by him. The court at plaintiffs' request, gave the general affirmative charge in their behalf, and claimant excepted.

Gamble & Powell, for appellant.

Richardson & Hamilton, for appellees.

BRICKELL C.J.

The statute (Pamph. Acts 1888-89, p. 57, 58), under which the appellant intervenes, as claimant of seven bales of cotton the subject of a pending action of detinue the appellees have instituted against Lee & Grant, required the appellant to make affidavit and execute bond, as is "required by law in cases of trials of right of property, when levied on by writ of fieri facias." The making of the affidavit and the execution of the bond entitled the appellant to the possession of the cotton, and it became the duty of the sheriff to return to the court in which the action of detinue was pending the summons, affidavit, and bond, "upon which the same proceedings must be had as in other trials of the right of property." Without no venturing upon a general construction of the statute, or inquiring what becomes of the action as between the original parties, or what course of proceeding must be observed, or what judgment may be rendered as between them, contrary to our first impression, we are now satisfied it is contemplated that there shall be a distinct, separate contestation or controversy between the plaintiffs in the action and the intervening claimant, and the proceedings in the controversy must be assimilated to and conducted as are the proceedings in the statutory trial of the right to personal property levied on by execution, and claimed by a stranger to the process. The statutes authorizing and regulating that proceeding provide that an issue must be made up between the plaintiff in execution and the claimant, in which the former must allege that the property claimed is the property of the defendant in execution, and liable to its satisfaction. The allegation is of itself a negation of the right of the claimant; and it is affirmative, as well as negative; and, if the statute had not so declared, necessarily would have cast the burden of proof on the plaintiff in execution. Code, §§ 3004-3007. When there is intervention under the statute, in an action of...