Ross v. Lawson

• Decision Date: 15 January 1895
• Citation: 16 So. 890,105 Ala. 351
• Parties: ROSS v. LAWSON.
• Court: Alabama Supreme Court

16 So. 890

105 Ala. 351

ROSS v. LAWSON.

Supreme Court of Alabama

January 15, 1895

Appeal from circuit court, Pike county; John R. Tyson, Judge.

Action by M. J. Ross against J. R. Lawson. There was a judgment for plaintiff, and levy of execution thereunder, and the wife of defendant intervened as claimant. From a judgment for claimant, plaintiff appeals. Reversed.

This was a statutory claim suit, which was instituted by Mrs. J R. Lawson interposing a claim to certain property, which had been levied upon under an execution issued upon a judgment recovered by M. J. Ross, the appellant, against J. R. Lawson the husband of the claimant. On the trial of the case, as is shown by the bill of exceptions, S. M. Reeves was introduced as a witness for the plaintiff, and testified that he was the deputy sheriff of Pike county, and levied the execution in this case; that he found the goods claimed in the house occupied by J. R. Lawson and his wife, the claimant; that a few days before he made the levy he went to Lawson's house, and asked Mrs. Lawson if she claimed any of the property there, and she answered that she did not. On cross-examination, said Reeves testified that on the day he made the levy J. R. Lawson was present, and stated "that his wife bought the property claimed; and Mrs. Lawson claimed the property belonging to her." The bill of exceptions then recites: "There was no evidence that Mrs. Lawson owned the house in which she and her husband resided, other than the occupancy by the claimant and her husband, or the furniture in it, other than it was in the house, and used by her." It was further shown that the plaintiff had recovered a judgment against J R. Lawson, the husband of the claimant, and that the execution levied upon the property in controversy was issued upon said judgment; and the plaintiff proved each item of the furniture which was levied upon and claimed. The plaintiff requested the court to give the following written charge, and duly excepted to the court's refusal to give it: "Although J. R. Lawson may have said at the time of the levy, that his wife bought the property levied on, yet, if the jury believe that this statement was not made in good faith, and if they further find that J. R. Lawson was in the possession, then they must find for the plaintiff, unless Mrs. Lawson has shown title in herself." There was judgment for the claimant. Plaintiff appeals, and assigns as error the refusal of the court to give the charge asked by him.

M. N Carlisle, for appellant.

J. D Gardner, for appellee.

HARALSON J.

1. The authorities hold, that in the case of the trial of the right of property levied on under execution, to which a claim has been interposed...