Schloss v. Inman

• Court: Alabama Supreme Court
• Writing for the Court: SHARPE, J.
• Citation: 129 Ala. 424,30 So. 667
• Decision Date: 24 January 1901
• Parties: SCHLOSS v. INMAN ET AL. [1]

30 So. 667

129 Ala. 424

SCHLOSS
v.
INMAN ET AL. ^[1]

Supreme Court of Alabama

January 24, 1901

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...