McNeill v. Kyle

• Decision Date: 20 February 1889
• Parties: MCNEIL ET AL. v. KYLE.
• Court: Alabama Supreme Court

5 So. 461

86 Ala. 338

MCNEIL ET AL. v. KYLE.

Supreme Court of Alabama

February 20, 1889

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

Parks & Son, for appellant.

CLOPTON, J.

On December 30, 1886, an attachment was sued out by appellees against the estate of appellant, on an indebtedness claimed to be due. Judgment was rendered in the attachment suit, November 10, 1888, in favor of the plaintiffs in attachment. The attachment was levied on goods and merchandise, to which a claim was interposed by C. M. Gardner & Co., to whom the property was delivered on the execution of a claim-bond. On November 10, 1888, the claimants having declined to further prosecute, and having withdrawn their claim, judgment was rendered that the property was liable to the attachment. On the same day, it being made to appear to the court that the defendant in attachment had filed with the officer levying the attachment a claim of exemption to a portion of the property, and that, no contest of the claim having been inaugurated, the sheriff had discharged the levy on such property, the court made an order discharging the levy as to the property claimed as exempt. The record shows that the appeal is taken from the judgment in the attachment suit, but, by agreement of counsel, it is to be considered and treated as an appeal from another and different judgment. We do not wish to be understood as recognizing that agreement of counsel can give this court jurisdiction of an appeal not taken as provided by the statute. Consent cannot give jurisdiction of the subject-matter. This, however, is immaterial in the present case. If the appeal is taken from the judgment in the attachment suit, as shown by the record, the judgment must be affirmed, because no errors relating to it are assigned. If the appeal should be regarded as taken from the judgment in the claim suit, as to which errors are assigned, it must be dismissed. The appellant is not a party to such judgment, has no right to appeal therefrom, and can complain of no errors intervening in the claim proceedings or judgment. Whether the appeal be taken from the one judgment or the other, the result is the same. Affirmed.