Monroe County Growers' Exch. v. Harper

• Citation: 20 Ala.App. 532,103 So. 600
• Decision Date: 24 March 1925
• Docket Number: 1 Div. 593
• Parties: MONROE COUNTY GROWERS' EXCHANGE v. HARPER.
• Court: Alabama Court of Appeals

103 So. 600

20 Ala.App. 532

MONROE COUNTY GROWERS' EXCHANGE v. HARPER.

1 Div. 593

Court of Appeals of Alabama

March 24, 1925

Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.

Attachment suit by George H. Harper against R.A. Galloway, and claim by the Monroe County Growers' Exchange. Judgment for plaintiff, and claimant appeals. Affirmed.

Barnett, Bugg, Lee & Jones, of Monroeville, for appellant.

Hybart & Hare, of Monroeville, for appellee.

SAMFORD J.

On the 31st day of May, 1922, plaintiff sued out a writ of attachment by making affidavit and giving bond against R.A Galloway as defendant. This writ was on June 17, 1922, levied on certain potatoes, as the property of defendant. On the date of levy this claimant filed a claim bond and affidavit asserting claim to the property attached. There was another levy and claim bond, not necessary here to set out. On August 2, 1922, plaintiff filed his complaint claiming amounts due plaintiff on two promissory notes, with waiver of exemptions as to personal property. On October 6, 1922, by agreement between plaintiff and defendant, and while the claim suit was pending, a judgment was rendered in favor of the plaintiff for $596.50, with waiver of exemptions and a provision for execution. It was further ordered that the claim suit was continued until the next term of the court. In March, 1923, the claimant moved the court to dissolve the levy of the attachment on various grounds stated, which raised the point that by accepting a judgment by agreement with a general order for execution and without fixing a lien for rent, and the complaint not claiming for rent or a lien on the property levied on, that thus the obligation as between plaintiff and defendant had become fixed as to the property included in the claim suit, and that plaintiff had waived his lien for rent, and whereupon on October 4, 1923 plaintiff filed a motion to set aside and annul the judgment theretofore rendered and to reinstate the cause on the docket on the ground that the court was without power to render judgment before a disposition of the pending claim suit and the defendant consented to the granting of this motion. The court overruled the motion of claimant to quash the levy and granted plaintiff's motion to annul the former judgment and for reinstatement of the cause, and these rulings present the first assignments for review.

There can be little doubt that mere irregularities which do not render a writ of attachment void on its face are not available to a claimant in a claim suit. Carter v O'Bryan, 105 Ala. 305, 16 So. 894; McDonald v. Stephens, 204 Ala. 359, 85 So. 746. This for the reason that irregularities may be cured by timely amendments; but if the writ is void, it would be open to attack by the claimant. McDonald v. Stephens, supra; Bradford & Sons v. Bassett, 151 Ala. 520, 44 So. 59. It would also seem to be equally certain that a circuit court is without authority to set aside or annul a valid judgment after the term of court at which the judgment was rendered. Code 1923, § 7858. Taylor v. Jones, 202 Ala. 18, 79 So. 356; Sexton v. Harper, 210 Ala. 691, 99 So. 89; First National Bank of Lawrenceburg v. Morrow et al., 19 Ala.App. 459, 98 So. 34; Ex parte Margart, 207 Ala. 604, 93 So. 505.

Under section 6216 of the Code of 1923, no judgment can be rendered against the defendant in attachment when a claim has been interposed to try the rights of property, except in certain cases, one of which exceptions is where personal service by summons and complaint is had on defendant. The consent of the defendant to the rendition of the judgment would be a waiver by him of personal service, a fact of which he alone could complain. The provision of the statute as to a delay in the main suit in attachment is for the protection of the parties to the original suit, and if they agree to a judgment fixing the amount due, such judgment may be entered at once without abatement of the claim suits then pending. The claimant is in no way affected by this judgment and cannot complain.

The claim suit, while dependent for its beginning on the levy in the attachment suit, is none the less triable upon its own issues, independent in a large measure of the main suit. If the finding is for or against the claimant, that is the end of the matter so far as he is concerned, and from any judgment entered in the claim suit an independent appeal lies. Wheeles v. N.Y.S.D. Works, 129 Ala. 393, 29 So. 793.

It therefore appears that the first judgment rendered in this case in the main suit is still in full force and effect; but notwithstanding that fact, the claim suit is not abated and stood for trial as an...