Schloss v. Inman

Decision Date24 January 1901
Citation129 Ala. 424,30 So. 667
PartiesSCHLOSS v. INMAN ET AL. [1]
CourtAlabama Supreme Court

Appeal from circuit court, Barbour county; A. A. Evans, Judge.

Action by Inman, Smith & Co. against J. Oppenheimer. Hugo Schloss filed a statutory claim. Judgment for plaintiffs, and claimant appeals. Affirmed.

Appellant claimed title by virtue of an assignment made to him by J Oppenheimer for the benefit of creditors. Appellees claim under an attachment issued and levied at their instance against said Oppenheimer. The assignment was executed between 5 and 6 o'clock of the afternoon of December 28, 1896 and was delivered at once to appellant by the assignor together with the key to the store in which the property assigned was situated. The deed of assignment was filed for record in the probate office at 9 o'clock on the morning of December 29, 1896. The question presented was whether the assignment or plaintiffs' attachment had priority. The evidence for the plaintiffs tended to show that the sheriff went into the storehouse of the defendant, Oppenheimer, on the afternoon of December 28, 1896, with the writ of attachment in plaintiff's favor, and, falling to get the money for the same, levied upon the goods in controversy, by announcing a levy thereon, naming the goods, and making an inventory of the same; that afterwards appellant came in, and he and said Oppenheimer executed a paper, the character of which was unknown to the officer; that Oppenheimer then gave to appellant a key to the store, and appellant announced that all the goods, except certain clothing not involved here, had been sold to him; that the sheriff never moved any of the goods, but appellant agreed to keep the same as bailee for the officer. The testimony for the claimant tended to show that, before any attempt to levy was made, he and said Oppenheimer spread out the deed of assignment under which appellant claimed title, and were in the act of executing it when the sheriff said, "I notify you that whatever paper you sign will be subject to my levy," whereupon he was asked by the attorney for appellant and Oppenheimer upon what he levied, and the officer replied, "Upon the entire stock;" that he was notified that, if he levied upon so many goods for a $300 claim, his bond would be held liable for an excessive levy; that the deed was then executed and delivered, and the key to the store handed appellant, who asserted title to the goods described in the deed; that after this the officer announced that he would levy upon all the goods upon the east side of the store, down to the telephone which are the goods in controversy, but he never interfered with them or removed the same, though he demanded the key of appellant, which appellant declined to surrender; that appellant refused to hold the goods as bailee of the officer that all parties left the store. Appellant locked the door and kept the key, and denied the superiority of the levy over his title. It was further shown that on the next day other attachments were levied upon the entire stock, and that the sheriff then took possession under the levy in this and other cases, and made an inventory of the goods, when appellant retook possession by executing claim bonds in each case. The claimant offered the testimony of one Pierce as to some of the facts above stated, and then offered to prove that the witness remembered the circumstances detailed by him, because at the time he was cautioned not to forget, as he might be a witness; but the court refused to allow such testimony, and the claimant excepted. Plaintiffs offered the evidence of one Brown, a deputy sheriff, as to the value of the goods in suit. He testified that he did not make the levy in this case, but took possession of the entire stock under this and other attachments, and had an inventory taken; that the inventory was taken by other parties, but under his supervision; that he was in and out of the store while the same was being taken, but did not take down any of the goods, or fix the value upon the same; that he clerked in a store at one time, and knew the value of some of the goods, but others he knew nothing about. This witness testified that the value of the goods was that shown by the inventory attached to the sheriff's return. Plaintiffs then offered said inventory in evidence. Claimant objected to the introduction in evidence of this inventory, because illegal, and because it was not shown to have been made by the witness and was not competent evidence of value. The court overruled the objection, allowing the inventory, with the value of each article as stated therein, in evidence. The separate value of each article of the goods levied upon was not shown, except as the same appeared upon the inventory made by the sheriff, but the evidence disclosed without conflict that the claimant had disposed of all the property before the trial. The court, at the request of the plaintiffs in writing, gave the affirmative charge for the plaintiffs. The jury retired, but afterwards returned and stated to the court that its charge was not understood, and the court repeated the general charge to find for the plaintiffs if they believed the...

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10 cases
  • Blair v. Greene
    • United States
    • Supreme Court of Alabama
    • 12 Abril 1945
    ......This Court has held that under such circumstances the. cause will not be reversed. Goff et al. v. Sellers,. 215 Ala. 489, 111 So. 210; Schloss v. Inman, Smith & Co.,. 129 Ala. 424, 430, 30 So. 667, 669. Here there is no dispute. as to the facts, and the result in nowise depends upon the. ......
  • Johnson v. Mason
    • United States
    • Court of Appeal of Missouri (US)
    • 10 Febrero 1914
    ......27, 24 So. 458, it. was held that the execution of the attachment bond estops the. interpleader from denying the levy; and in Schloss v. Inman, 129 Ala. 424, 30 So. 667, and Foster v. Goodwin, 82 Ala. 384, 2 So. 895, that "The. existence of plaintiff's debt, as well as the fact ......
  • Uptain v. State
    • United States
    • Alabama Court of Appeals
    • 30 Junio 1953
    ...the doctrine of error without injury with respect to violations of the above statute. Dugger v. Tayloe, 46 Ala. 320; Schloss v. Inman, Smith & Co., 129 Ala. 424, 30 So. 667. In the case of Manning v. State, 217 Ala. 357, 116 So. 360, the opinion does not make it clear whether or not there w......
  • Johnson v. Mason
    • United States
    • Court of Appeal of Missouri (US)
    • 28 Enero 1914
    ...27, 24 South. 458, it was held that the execution of the attachment bond estops the interpleader from denying the levy; and in Schloss v. Inman, 129 Ala. 424, 30 South. 667, and Foster v. Goodwin, 82 Ala. 384, 2 South. 895, that: "The existence of plaintiff's debt as well as the fact that t......
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