Schamragel v. Whitehurst

• Decision Date: 22 May 1894
• Citation: 103 Ala. 260,15 So. 611
• Parties: SCHAMRAGEL v. WHITEHURST.
• Court: Alabama Supreme Court

15 So. 611

103 Ala. 260

SCHAMRAGEL v. WHITEHURST.

Supreme Court of Alabama

May 22, 1894

Appeal from circuit court, Franklin county; H. C. Speake, Judge.

Certiorari on petition of J. F. Whitehurst against A. C. Schamragel, to Thaddeus M. Mills, a justice of the peace, in the case of petitioner's claim to property attached by Schamragel in his suit against W. P. Montgomery. Judgment for claimant. Plaintiff appeals. Reversed.

Almon &amp Bullock and John F. Jack, for appellant.

Key &amp Hester, for appellee.

COLEMAN J.

The plaintiff Schamragel began a suit in assumpsit against W. P Montgomery by attachment, which was levied upon a quantity of lumber, before a justice of the peace, returnable to his court. Appellee, Whitehurst, interposed a claim to the property, made affidavit, and gave bond, as required by the statute, to try the rights of property. The justice of the peace found the issue for the plaintiff in attachment, and condemned the property to the satisfaction of the judgment which had been rendered in favor of the plaintiff against Montgomery. The claimant obtained a statutory writ of certiorari, and the case was brought up to the circuit court for trial. The justice of the peace certified up to the circuit court the affidavit and the claim bond made by claimant and the judgment rendered in the claim, condemning the property to the payment of the judgment against the defendant debtor. On the trial in the circuit court, the plaintiff introduced in evidence the transcript from the justice's court and evidence tending to show that the property belonged to the defendant debtor, and rested. The claimant introduced no evidence. The court gave the general charge for the claimant. This is assigned as error.

When a case is brought up by appeal on the statutory writ of certiorari from a magistrate's court to the circuit court, the trial is de novo. The plaintiff is the actor, and the burden is on him to show that the property is subject to plaintiff's debt. Until this has been done, the claimant is not required to introduce any evidence. Treadway v Treadway, 56 Ala. 390; Rhodes v. Smith, 66 Ala. 174; 3 Brick. Dig. 776. The affidavit made by the claimant states that "the lumber had been levied on by attachment by the constable at the suit of Alexander Schamragel against W. P. Montgomery," etc.; and the claim bond recites that, "whereas a writ of attachment issued out of the court of Thaddeus M. Mills, J. P., returnable to the next term of the court on second Saturday in December, 1890, placed in the hands of the constable, *** and by him levied upon the following property," etc. Neither the debt due from the defendant nor the judgment against him, ordinarily, can be inquired into on the issue to try the rights of property. On such a contest the issue is whether "the property claimed is the property of the defendant in [execution or] attachment, and liable to its satisfaction." Code, §§ 3005, 3012, 3366; Boswell v. Carlisle, 55 Ala. 565. That the property had been levied on by a constable under attachment process in the suit of the plaintiff against Montgomery was an admitted fact, shown by the affidavit and claim bond of claimant. It was therefore...