Lee v. King

• Decision Date: 13 June 1893
• Citation: 99 Ala. 246,13 So. 506
• Parties: LEE v. KING, CLERK.
• Court: Alabama Supreme Court

13 So. 506

99 Ala. 246

LEE v. KING, CLERK.

Supreme Court of Alabama

June 13, 1893

Appeal from circuit court, Butler county; John R. Tyson, Judge.

Application by Robert A. Lee for mandamus to J. C. King, clerk of court to issue an alias writ. From an order denying the application, petitioner appeals. Affirmed.

J. C Richardson, for appellant.

C. E Hamilton and L. M. Lane, for appellee.

STONE C.J.

This was an application to the circuit court of Butler county for a mandamus or mandatory order to the clerk of that court commanding him to issue an alias venditioni exponas on a certain judgment therein described, of which the petitioner, R. A. Lee, represents himself as transferee and owner. The judgment was recovered by mechanics and material men for work and labor done and materials furnished in the erection of an hotel building on a certain described lot in the city of Greenville. The purpose and effect of the suit and judgment were the ascertainment and adjudication of the amount due plaintiffs, and the decision and declaration of a statutory lien in their favor for its enforcement, under the act approved February 12, 1891, (Sess. Acts, p. 578.) Judgment was by default, the suit not being defended. The pleadings in that case are not before us, but the judgment itself, reciting the verdict of the jury on which it was rendered, is made part of the petition. The jury's finding was as follows: "We, the jury, assess the amount of plaintiffs' damages at $8,025.00, and find that the Greenville Hotel & Improvement Company was and is, as alleged in said complaint, the owner of the land and hotel building described therein, and that as such owner contracted with the plaintiffs for the erection of the said hotel building on the lot as alleged therein, and that said plaintiffs under such contract have done work and labor and furnished material for and used on said building and its erection under said contract with the defendant, and that the amount thereof now due and unpaid and owing by the defendant to the plaintiffs is the sum of $8,025.00; and further find that the plaintiffs filed their lien and gave notice according to law and as alleged in said complaint, and that the plaintiffs have a lien on said hotel building and the lands described in said complaint for the sum of $8,025.00." The judgment of the court pronounced on this verdict declared a lien on the hotel and on the lot on which it was erected for the payment of said judgment for $8,025, and for the costs of the suit. We have no means of knowing, but suppose the verdict covers and includes all the property embraced in the complaint; particularly so as the judgment was by default, and no defense being made.

In the petition before us it is conceded that the hotel and the lot it stands on have been sold, and the proceeds applied to the payment of the judgment; but it is claimed that a balance is left unpaid. The purpose of the present application is to obtain an alias venditioni exponas for the collection of that balance. The averment in the petition under which this relief is sought is in the following language: "The sheriff of Butler county, Alabama, sold said lot and the hotel building situated thereon, but...