Poole v. Griffith

• Decision Date: 24 March 1927
• Docket Number: 8 Div. 945
• Citation: 216 Ala. 120,112 So. 447
• Parties: POOLE et al. v. GRIFFITH et al.
• Court: Alabama Supreme Court

112 So. 447

216 Ala. 120

POOLE et al. v. GRIFFITH et al.

8 Div. 945

Supreme Court of Alabama

March 24, 1927

Rehearing Denied April 21, 1927

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action by Matt Griffith and another against C. Ernest Poole and another. From a judgment for plaintiffs, defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326 Affirmed.

Eyster & Eyster, Wade Wright, and Tennis Tidwell, all of Albany, for appellants.

Ben L Britnell and G.O. Chenault, of Albany, and S.A. Lynne, of Decatur, for appellees.

THOMAS J.

The case was submitted to the court on an agreed statement of facts. The question of misjoinder of actions and parties, and the right of elimination thereof, by amendment, need not be again restated. Wright v. McCord, 205 Ala. 122, 88 So. 150.

The following facts are shown by recitals and exhibits: On October 23, 1924, one Bradley began suit on a promissory note in the county court against W.G. and Matt Griffith; in aid thereof there was an attachment against Matt Griffith levied on four bales of cotton, amended at trial, so as to make same against "both of said defendants"; the cotton was replevied by Matt Griffith and delivered to him; by an agreement of the parties, one-half of the cotton was delivered to a third party (A.L. George) having a one-half interest therein; the suit proceeded to judgment of date of January 28, 1925, against the Griffiths (Matt and W.G.); and the bales of cotton weighing, respectively, 595 and 654 pounds were involved after the release of the two bales of 645 and 597 pounds to said George. After said judgment the two remaining bales of cotton were duly surrendered to the sheriff on February 21, 1925, and the respective claims of exemption filed; that of W.G. Griffith of date of "21st day of February, 1926," meaning by context to be 1925 and will be so treated, claiming different articles of personal property, and "I also claim as exempt a one-half interest in one bale of cotton, weighing 654 pounds, and one-half interest in one bale of cotton weighing 595 pounds, said cotton being valued at 24 cents a pound. Said cotton is now in the hands of C.E. Poole, as sheriff of Morgan county, Ala., and is stored in Hughes & Tidwell's warehouse, Albany, Ala.; my half interest in said two bales of cotton being valued at about $150. This is all of the personal property owned by me of which I have any interest and which does not exceed $1,000 in value. This exemption is especially claimed against the suit of S.H. Bradley against this affiant and Matt Griffith, in the Morgan county court of Morgan county, Ala., and against the attachment levied on the said cotton."

The same clause was embraced in the claim of Matt Griffith, a different schedule of other personal property, half interest in the same lot of corn and mules; the same is dated the 21st day of February, 1925. The notice of the sheriff to the plaintiff in the judgment, S.H. Bradley, was that "Matt Griffith and W.G. Griffith have each filed with me this day his claim of exemption to his interest in two bales of cotton, which were levied upon under attachment in this case, which have been returned to me as sheriff under the terms of the replevy bond. This February 21, 1925"--and the return shows that it was "executed" on the same day. It is further shown that of date of February 28, 1925, said plaintiff Bradley filed his contest of said exemptions, notice thereof given by the sheriff to "said W.G. Griffith and Matt Griffith," that said "claims so filed by the said S.H. Bradley have never been tried in said county court; that Matt Griffith and W.G. Griffith" did not execute a bond and take possession of said property as provided in section 7897 of the Code of 1923, within five days after receiving notices of said contest, and neither one of them made such bond; that said Bradley did not make the bond (section 7898, Code of 1923), "within five days" after the expiration of five days from the execution of said notice of contest, nor at any other time. It is further recited:

"After the expiration of ten days from and after the 10th day of March, 1925, when said notices of contest were served the said Matt and W.G. Griffith, both and each demanded of C.E. Poole, sheriff, the possession of said two bales of cotton remaining in his hands. Said cotton was at the time of such demand of the value of 24 cents per pound, and said sheriff failed and refused to deliver said cotton to said Matt Griffith and W.G. Griffith, or either of them, and continued to hold the same in his possession. Said cotton at that time weighing 595 pounds and 654 pounds. The two bales together weighing 1,249 pounds. On, to wit, the 12th day of March, 1925, the said Bradley filed his motion in said county court to amend said judgment nunc pro tunc."

The motion "to amend said judgment nunc pro tunc" was for the recited purpose as follows:

"The judgment rendered and entered in the foregoing cause in favor of the plaintiff and against the defendants, so as to adjudge by said judgment that plaintiff has a lien upon the following described property, to wit, one bale of lint cotton weighing 595 pounds and one bale of lint cotton weighing 654 pounds, which was levied upon under and by virtue of a writ of attachment issued out of the Morgan county court of Morgan county, Ala., by C.E. Poole, as sheriff of said county, in the above and foregoing cause, and so as to declare that plaintiff has a lien on said cotton, and so as to adjudge that said cotton so levied upon be condemned and ordered sold for the satisfaction of the judgment which the plaintiff obtained against the defendants in said cause, and so as to condemn said cotton for the satisfaction of said judgment and order the same sold for the payment and satisfaction of said judgment,"

--and as grounds thereof stating the facts as we have generally hereinabove indicated; and the judgment was entered on said motion as therein sought and prayed, and that order was:

"It is hereby considered, adjudged, and ordered that plaintiff's motion to amend the judgment in this cause nunc pro tunc be and the same is hereby granted, and the judgment in this cause is hereby amended so as to declare that plaintiff has a lien on said two bales of cotton, as aforesaid, and so as to condemn said two bales of cotton to the satisfaction of this judgment, and so that the judgment in this cause will be in words and figures, and will read as follows,"

--reciting the words of the amended judgment to be entered by the clerk on the minutes of that court, and concludes with the direction to the sheriff as follows:

"It is further considered, adjudged, and ordered that the sheriff of Morgan county, Ala., be and he is hereby ordered to sell the said two bales of cotton under and by authority and by virtue of this judgment, as the law directs, and for the satisfaction and payment of this judgment."

It is further recited in the agreed statement of facts:

"On the 23d day of October, 1924, and all the time since then, C. Ernest Poole was sheriff of Morgan county, Ala., and the American Surety Company of New York was the surety on his official bond. The said C. Ernest Poole, as sheriff of Morgan county, Ala., had possession of said two bales of cotton, which had not been released from said attachment at the time said demand was made upon him by said Griffiths, and he has never delivered said cotton or either of said bales to Matt Griffith or W.G. Griffith or to any one for them."

The judgment was for the plaintiffs, and the motion "in arrest of the judgment" was then and there urged, "because there was a misjoinder of parties plaintiff in the cause in this, when the plaintiffs claimed a separate exemption in the cotton, the joint interest of the plaintiffs therein became thereby severed and plaintiffs were not entitled to maintain this suit jointly. The court overruled said motion on the day and date said motion was made, and the defendants then and there in open court duly reserved an exception to the action and ruling of the court in overruling said motion."

If it may be inferred from the uncontroverted questions of fact that the appellees were farmers, had raised the two bales of cotton by joint effort, and no division had been made between them, a joint ownership or tenancy in common would have been shown. Reeves v. Reeves, 207 Ala. 362, 92 So. 551; Mullins v. Baker, 193 Ala. 594, 69 So. 516; Thompson v. Mawhinney & Smith, 17 Ala. 362, 52 Am.Dec. 176. However, the record is silent of their former or contractual relations to the property or cotton in which each claims "a one-half interest," and "my half interest in said two bales of cotton being valued at about $150."

In Hood v. Johnston, 210 Ala. 617, 99 So. 75, it is held as to the right of party plaintiff to recover for himself and tenants in common that:

"The rule, that a tenant in common as against a mere disseizer or stranger to title may recover the whole estate for the benefit of all, contemplates that all cotenants are entitled to recover and is inapplicable where the rights of some are barred by limitations. Tenants in common hold by separate and distinct titles but by unity of possession, so that the disability of one will prevent the operation of the statute of limitations as to him, but not as to those not under any disability. A plaintiff cotenant claiming the whole estate may recover an undivided interest."

In Brookside-Pratt Mining Co. v. McAllister, 196 Ala. 110, 112, 72 So. 18, 19, the joinder of the parties plaintiff held that:

"Where the action is joint for injuries from overflow plaintiffs cannot recover damages purely personal to each *** alone, although both suffered like damages." It is further said:

"Several pa

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