Landers v. Moore

• Decision Date: 12 May 1925
• Docket Number: 4 Div. 8
• Citation: 21 Ala.App. 12,106 So. 223
• Parties: LANDERS v. MOORE et al.
• Court: Alabama Court of Appeals

106 So. 223

21 Ala.App. 12

LANDERS v. MOORE et al.

4 Div. 8

Court of Appeals of Alabama

May 12, 1925

Rehearing Denied June 9, 1925

Appeal from Circuit Court, Crenshaw County; Arthur E. Gamble, Judge.

Claim suit between E.H. Moore and another, plaintiffs in execution and J.C. Landers, claimant. From a judgment granting plaintiffs' motion for a new trial, claimant appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Landers, 106 So. 225.

Rushton Crenshaw & Rushton, of Montgomery, and W.H. Stoddard, of Luverne, for appellant.

Frank B. Bricken, of Luverne, and Powell &amp Hamilton, of Greenville, for appellees.

BRICKEN P.J.

This is a trial of the right of property between the plaintiff in attachment and a third person who purchased the property from the defendant in attachment pending the attachment suit. After a trial before the court, without the intervention of jury, resulting in a judgment for the claimant, on motion of the plaintiff that judgment was set aside and a new trial awarded. This appeal is by the claimant from the order of the court granting the new trial.

The property in controversy is "one sawmill, one boiler, one steam engine, one edger and one trimmer," the constituents of a complete sawmill, which at the time of the levy of the attachment, if in fact there was a levy, was in the possession of the defendant set up and equipped for operation on the land of the plaintiff.

On the trial the plaintiff introduced in evidence the record of the attachment suit, going to show that the writ of attachment was levied on the property in controversy by the sheriff of Crenshaw county, on April 21, 1923; that written notice of the levy, issued as of the date of the levy, was served on the defendant on the 15th day of October, 1923; and on November 15, 1923, the court rendered judgment for the plaintiff and against the defendant, in the attachment suit, condemning the property for sale for the satisfaction of the judgment, and awarded venditioni exponas for its enforcement. The writ of venditioni exponas awarded was issued by the clerk of the court on the 11th day of December, 1923, and the sheriff advertised the property for sale thereunder, and at this juncture the claimant interposed a claim under the statute.

The claimant offered evidence tending to show that the sheriff did not take possession of the property, but allowed it to remain in the possession of the defendant Piper after the alleged levy; and about May 1, 1923, Piper removed the property from Moore's land to the land of John Mothershed, 2 or 2 1/2 miles distant from its former location, where he set the mill down and continued to operate it until November 3, 1923, when the claimant purchased it, with other property, from Piper, for a consideration of $2,000, and at the time claimant had no notice of the levy of the attachment on the property in controversy.

In rebuttal of the claimant's testimony, the plaintiff offered evidence tending to show that the deputy sheriff went upon the premises where the sawmill was located, found two or three negro mill hands, from whom he ascertained that Piper was away on that date and that one Addison was the foreman; said Addison not being present. While at the mill, the deputy walked through the mill, listed the property, indorsing the list on the attachment writ. The deputy then went to Addison's home, found him absent, but left word for him to come to his office, and Mr. Sykes, the deputy, testified:

"I told Mr. Addison about taking charge of the property. When he came to town we met, and I told him to look after it until the mill was sold. He told me he would do that; that is what I am down here for now."

Addison...