One Packard Automobile v. State

• Citation: 86 So. 21,204 Ala. 435
• Parties: ONE PACKARD AUTOMOBILE (DENEGRE CAR & TRUCK CO. et al., Claimants v. STATE.
• Decision Date: 30 June 1920
• Court: Supreme Court of Alabama

86 So. 21

204 Ala. 435

ONE PACKARD AUTOMOBILE (DENEGRE CAR & TRUCK CO. et al., Claimants v. STATE.

Supreme Court of Alabama

June 30, 1920

Appeal from Circuit Court, Shelby County; E.J. Garrison, Judge.

Bill by the State of Alabama for the condemnation of one Packard Automobile with claim by the Denegre Car & Truck Company and one Whitman. From a decree of condemnation claimants appeal. Reversed and remanded.

Nenian L. Steele, of Birmingham, for appellants.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BROWN J.

This is a bill filed under the statute to condemn as a contraband one Packard automobile, seized by the sheriff of Shelby county on the 13th day of December, 1919, while it was being used for the transportation of prohibited liquors. Acts 1919, p. 13, § 13.

Upon the filing of the bill the court made an order, directing that notice of the seizure be given by publication in a newspaper published in the county to all persons claiming the automobile, and giving persons interested 10 days after the perfection of publication to propound their claims; and within the time allowed the appellant Denegre Car & Truck Company, after first obtaining the permission of the court so to do, interposed its claim to the automobile under a conditional sale contract entered into between the Southern Garage Company and one Henry Whitman. After the time had elapsed for the filing of claims, on the day of trial Whitman presented his petition for leave of the court to propound a claim to the automobile, claiming under purchase from the Garage Company. The court, on objection being made by the state, denied the prayer of Whitman, and declined to allow him to file a claim. Notwithstanding this he appeals and assigns error.

The statute provides:

"The judge presiding in said circuit court [wherein the bill is filed], or any division thereof, may superintend and make all proper orders and orders of publication of notice to be published for all parties claiming the said vehicle to come in and assert their right thereto. And the said court shall have authority to frame all orders or procedure so as to regulate the proceedings that persons may have an opportunity to come in and propound their claim to the vehicles and conveyances sought to be condemned." Acts 1919, p. 13, § 13.

The manifest purpose of the quoted provision is to grant to all persons who have a bona fide claim to property the right to propound their claim to the property, and we doubt if it is necessary for the party to pray for and obtain leave of the court to file such claim, if the right to file it is exercised within the time allowed by the order of the court but when that time has expired permission of the court to propound the claim is necessary. One in default comes in as a matter of grace and not of right. Whitman did not become a party to the...