Roswald v. Hobbie

• Decision Date: 14 May 1888
• Citation: 85 Ala. 73,4 So. 177
• Parties: ROSWALD ET AL. v. HOBBIE ET AL.
• Court: Alabama Supreme Court

4 So. 177

85 Ala. 73

ROSWALD ET AL. v. HOBBIE ET AL.

Supreme Court of Alabama

May 14, 1888

Appeal from circuit court, Autauga county; JAMES W. LAPSLEY, Judge.

Roswald & Stoll levied an attachment on property formerly owned by one Rawlinson, and in the possession of Hobbie & Teague claiming it under a prior sale. The charge referred to in the opinion as the first charge of the plaintiff was as follows "(1) The plaintiffs having proved that Rawlinson was indebted to them at the time the attachment was sued out, and the transaction between the claimants and Rawlinson, sought to be established as a sale, being assailed by the plaintiffs in this case, the burden is upon the claimants to show that the transaction was supported by an adequate and valuable consideration, is honest, and without benefit to Rawlinson." The court refused to give this charge, and the plaintiffs appeal.

Rice & Wiley, for appellant.

Thorington & Smith, contra.

STONE C.J.

The present suit was what is known in our jurisprudence as a trial of the right of property. Rawlinson had formerly owned the merchandise which is the subject of the controversy, and the testimony leaves but little, if any, doubt that both appellants and appellees were creditors. Roswald & Stoll sued out an attachment against Rawlinson, which was levied on the merchandise about 10 o'clock A. M., December 20, 1886. The claim of Hobbie & Teague is that, earlier on the same morning, Rawlinson sold and conveyed the goods to them in payment of the debt he owed them, delivered them, and that they were in the possession of their agent when the levy was made. No question appears to have been made on the sufficiency of the consideration. On the same day the attachment was levied, the agent of Hobbie & Teague, in their name, executed a replevy bond, conditioned, if defendant failed in the action, to return the specific property in 30 days. The bond conforms to the provision of that statute. Code 1886, § 2964, (3289.) Thereupon the sheriff restored the property to claimants. On the next day, December 21, 1886, the claimants, Hobbie & Teague, through their agent, made affidavit that they had a just claim to the property levied on, and executed a claim bond in conformity with sections 3004, (3341), 3012, (3290,) Code 1886. This claim bond and affidavit were, on the day of their date, tendered to the sheriff, and the replevy bond demanded, that it might be canceled. The sheriff declined to surrender the replevy bond, but we are not informed what reason he gave, if any. He accepted the claim bond, however, approved it, and returned both bonds and the affidavit of claim to the court. At the return-term, Roswald & Stoll moved the court to strike the claim affidavit and bond from the file, on the ground that they were improperly received after the goods had been replevied, and the goods obtained and held by the claimants themselves under such replevy bond, and to dismiss said claim proceeding out of court. The court overruled the motion, and ruled that Roswald & Stoll should tender an issue, with a view to the trial of the right of property. To this ruling plaintiffs excepted.

In Bradley v. Clark, 22 Ala. 361, as in this case, property was attached, and a replevy bond was given by a stranger to the record. Judgment was obtained in the attachment suit, execution placed in the hands of the sheriff, and he demanded of the bondsmen a return of the property. The demand not being complied with, he returned the bond forfeited. The principal in the replevy bond thereupon interposed his affidavit and bond, claiming the property as his own. The circuit court allowed the claim, but this court reversed its ruling, on the ground that the claim came too late. The language of this court was that, "to authorize such claim, the property must either be in the actual or constructive possession of the officer of the law under process. In the case under consideration it had been taken out of his possession by the defendant in error, under the replevy bond, and by him retained when demanded by the sheriff. It is true, he might, under the condition of his bond, surrender the slave to the sheriff in discharge of his liability; and, having thus placed it in the custody of the officer, he could, if he were disposed to do so, interpose his claim, and try the right to it. But, having elected to forfeit the condition of his bond," etc., he lost his right to interpose his claim. It will be observed that in this case no attempt was made to assert the claim until after the replevy bond had been returned forfeited; nor had the sheriff accepted the claim bond until ordered to do so by mandamus from the circuit court. Cooper v. Peck, 22 Ala. 406, is only part and parcel of substantially the same case as that above considered. The same property, a slave, was attached as the property of the same defendant in each case. In this last case it was shown that the slave had died before the sheriff made demand of his return under the replevy bond, and the offer to institute the claim suit was made at the time the sheriff demanded the return of the slave. The sheriff refused to accept the affidavit and bond offered, and indorsed the replevy bond "Forfeited." An execution was thereupon issued on the forfeited bond, which the sheriff was proceeding to collect. Under a petition filed for the purpose, the circuit court ordered the sheriff to accept the claim affidavit and bond, and quashed the execution issued on the forfeited replevy bond. This court reversed his decision saying "that the condition of a replevy bond can only be complied with by a delivery of the property replevied to the sheriff, on his demand, after judgment against the defendant in attachment. The tender of the bond to try the right of property replevied, when the property itself is withheld from the sheriff, is a breach of the condition of the bond, and justifies the sheriff in returning it forfeited." In Rhodes v. Smith, 66 Ala. 174, speaking of the liability of a bondsman on a replevy bond, and the means of relieving himself, this court said: "If the title...