Merrill v. Travis

• Decision Date: 18 April 1946
• Docket Number: 4 Div. 366.
• Citation: Merrill v. Travis, 248 Ala. 42, 26 So.2d 258 (Ala. 1946)
• Parties: MERRILL et al. v. TRAVIS.
• Court: Alabama Supreme Court

26 So.2d 258

248 Ala. 42

MERRILL et al. v. TRAVIS.

4 Div. 366.

Supreme Court of Alabama

April 18, 1946

Rehearing Denied June 13, 1946.

J L. Murphy and Ralph A. Clark, both of Andalusia, and Albert J. Pickett, of Montgomery, for appellants.

S H. Gillis and E. O. Baldwin, both of Andalusia, for appellee.

FOSTER Justice.

This is an appeal by complainants from a decree sustaining demurrer to a bill in equity. Appellants also assign as error a decree refusing to issue a temporary injunction, under section 1057, Title 7, Code of 1940. But under it, the appeal must be taken in ten days. The appeal was taken more than ten days, so that it cannot be assigned as error.

The only question on this appeal is the ruling on demurrer to the bill as last amended.

The pertinent facts alleged are that appellee sued in detinue one Armstrong for the recovery of an automobile. Two days later he made appellants parties respondent. He gave a bond and had writ of seizure issued, which was returned by the sheriff showing that he had seized the automobile by taking it from the possession of appellants. The writ was issued prior to the time when appellants were made parties, but was executed afterwards, and on towit December 30, 1939. On January 5 1940, a replevin bond was approved with Armstrong as principal and appellants as sureties, while they were still parties defendant.

On March 4, 1940, plaintiff amended the complaint by striking appellants as parties defendant, and on November 22, 1943, plaintiff secured a judgment against Armstrong, making proof that he was in possession of the automobile when suit was begun, and which is alleged to be untrue, and that unless restrained the said plaintiff and sheriff (then also a party defendant) would mark the bond forfeited under section 923, Title 7, Code of 1940. By amendment it is alleged that when judgment was taken there was no proof made of the amount of the mortgage debt by Armstrong to plaintiff. There is no allegation of a suggestion by Armstrong as to a mortgage under section 929, Title 7, Code. But the bill alleges that such a mortgage was the basis of plaintiff's claim, though appellants claim to own the property by right superior to plaintiff's mortgage; and that the value of the automobile as proved is greatly in excess of the mortgage debt. Appellants allege that they sold the automobile to Armstrong and took a contract, a copy of which is attached; that Armstrong failed to make payments, and that in August 1939, appellants repossessed the car as authorized by the contract, and that Armstrong thereafter had no right or interest in it. Armstrong made a mortgage on it with appellee plaintiff in detinue to the Commercial Bank of Andalusia, by which appellee claimed title. This mortgage was dated October 10, 1939.

Another and last amendment was filed, striking the sheriff as a party defendant, and alleging that he had marked the bond forfeited, since the bill was filed and appellants have been forced to pay the sum of $550 and costs to or for appellee, and prayed a reference to ascertain the amount actually due appellee by Armstrong, also the amount appellants have paid him over and above the amount actually due him, and for general relief. This amendment is not an amended bill, but an addition to it as it stood before. Let it be noted that whatever was done by the parties subsequent to filing the bill and within the lis pendens is subject to such final decree as may be rendered unaffected by such subsequent conduct (Carroll v. Henderson, 191 Ala. 248, 68 So. 1), not now considering the rights of third persons not parties to the suit.

The bill alleges that one of the appellants was in possession of the automobile when the bond was executed and writ issued and executed, and that this is shown by the sheriff's return, and that after the bond was executed the automobile was left in his possession; that they did not intend to execute a bond having effect as it is drafted, but it was prepared by the sheriff and executed on his advice.

The Remedy.

Equity ordinarily does not act when adequate relief is available at law.

A writ of supersedeas, section 182, Title 13, Code, is available at law when relief is sought on facts occurring subsequent to the judgment, such as satisfaction, or if it relates to antecedent facts which show fraud in the judgment, or want of jurisdiction apparent on the face of the record. Gravett v. Malone, 54 Ala. 19; Ex parte Brickell, 204 Ala. 441, 86 So. 1; Thompson v. Lassiter, 86 Ala. 536, 6 So. 33; Henderson v. Planters' & Merchants' Bank, 178 Ala. 420, 59 So. 493; Jesse French P. & O. Co. v. Bradley, 143 Ala. 530, 39 So. 47.

When there is fraud in procuring a judgment, equity has jurisdiction, even though the four months statute, section 279, Title 7, Code, may be available also.

It may be that supersedeas could have been used as discussed in Campbell v. Byers, 6 Ala.App. 292, 60 So. 737, but we are persuaded that if appellants are entitled to relief equity may also be resorted to as was done in Woodruff v. Stough, 107 Ala. 314, 18 So. 258. In that case, the claim was as to marking the forfeiture of such a bond although the party claiming the forfeiture had received full credit for the property reflected on the main trial in the amount fixed as the mortgage debt.

Effect of Judgment on Sureties on Replevin Bond.

The forfeiture of the bond does not name the sureties, but upon it the statute authorizes an execution against them, and provides that it 'has the force and effect of a judgment.' Section 923, Title 7, Code. But it is not a judgment against the sureties, except to justify an execution. Such an execution against the principal is founded on the judgment and forfeiture, but execution is against the sureties by virtue of their contract under the statute. The principal should discharge it. To see who the sureties are, the bond must be looked up, and upon it, not upon a judgment against them, the execution is issued against them. Smith v. Jackson, 56 Ala. 25, 28. It is not a personal judgment having the qualities of such against the...