Simmons v. Sharpe

• Decision Date: 19 November 1903
• Parties: SIMMONS v. SHARPE ET AL.
• Court: Alabama Supreme Court

35 So. 415

138 Ala. 451

SIMMONS v. SHARPE ET AL.

Supreme Court of Alabama

November 19, 1903

Appeal from Circuit Court, Marengo County; Jno. C. Anderson, Judge.

Action by A. Y. Sharpe and G. G. Sharpe, partners, under the firm name and style of A. Y. Sharpe & Son, against R. L. Simmons. From an order overruling defendant's motion to set aside an execution sale, defendant appeals. Reversed.

The proceedings in this case were had upon a motion filed by the appellant, R. L. Simmons, to set aside and vacate a sale made by the sheriff of certain lands as the property of the movant, under the levy of an execution issued upon a judgment recovered against the defendant in a suit brought by the partnership of which the appellee was a member. There were five grounds of the motion, as follows: (1) The inadequacy of the price bid by the respondent to the motion; (2) that the return of the sheriff failed to show that all the personal property of the defendant was exhausted; (3) that, the first sale not having been set aside, at the second sale no one would bid for the property; (4) that the judgment recovered against the movant was void, because it was a judgment in favor of the partnership, and individual names were not set out in the judgment entry, and such judgment entry failed to show an adjudication by the court; (5) that the judgment was procured in favor of A. Y. Sharpe & Son, and the execution was issued in favor of said partnership, but before the execution was issued the partnership was dissolved. In addition to the other evidence introduced, as set forth in the opinion, the movant introduced the judgment entry in said cause, in which the parties to the suit were described as follows: "A. Y. Sharpe & Sons vs. R. L. Simmons." Such judgment entry, after setting out the return of the verdict by the jury, proceeded as follows: "It is therefore considered by the court that the plaintiffs have and recover of the defendant," etc. The respondents to the motion introduced the complaint filed in the cause upon which the judgment upon which the execution was issued was rendered, in which complaint the parties plaintiff were described as follows: "A. Y. Sharpe and G. G. Sharpe partners doing business under the firm name and style of A Y. Sharpe & Son." Upon the introduction of all the evidence, the court overruled the motion to vacate said sale and to this ruling the movant duly excepted. The movant prosecutes the present appeal, and assigns as error the overruling of the motion to vacate said sale.

Miller & Herbert, for appellant.

Geo. W Taylor and B. F. Elmore, for appellees.

TYSON J.

The appeal is prosecuted from an order denying a motion to vacate a sale under execution of certain lands belonging to the defendant in execution had on the 9th day of March, 1903, and purchased by one of the plaintiffs in...