Smith v. Barker

• Decision Date: 12 April 1894
• Citation: 102 Ala. 679,15 So. 340
• Parties: SMITH ET AL. v. BARKER.
• Court: Alabama Supreme Court

15 So. 340

102 Ala. 679

SMITH ET AL. v. BARKER.

Supreme Court of Alabama

April 12, 1894

Appeal from city court of Decatur; W. H. Simpson, Judge.

Action by H. S. Smith & Co. against Joe Barker to try title to property levied on and sold under attachment in an action by said Barker against the Decatur Grocery Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

The writ of attachment was levied on several boxes of oranges on January 2, 1891. Upon the return of the writ, it being shown to the justice of the peace before whom the attachment was sued out that the property levied on was perishable, it was ordered by said justice of the peace that the same be sold and the proceeds delivered to the court. After the sale of the property so levied upon as directed by the court, H. S Smith & Co., on January 22, 1891, made an affidavit of claim to the property so levied upon. Upon the execution of the bond, an issue was made to try right to the property so levied upon. The plaintiff moved the court to dismiss this claim interposed by H. S. Smith & Co. on the ground that the property claimed, as shown by the record and proceedings returned, was sold by order of the court before the claim was interposed, and the proceeds of sale turned over to the court; and because there was no claim, as required by law interposed to the property. The evidence for the plaintiff tended to show that the oranges levied upon arrived in Decatur on the night on January 1st, being brought as freight by the Louisville & Nashville Railroad Company, and were in one of the cars of said railroad company, at the depot in Decatur, at the time of the levy; that the persons composing the Decatur Grocery Company had absconded on or about December 25, 1890; and that their place of business had been and before the time of the levy of the attachment was closed. The testimony for the claimants tended to show that they were the original owners of the oranges levied upon in this suit; that they sold the oranges "to the defendants on commission only;" that they resided in Anthony, Fla and they had shipped said oranges to the Decatur Grocery Company; that said oranges had never been delivered to the Decatur Grocery Company, to whom they had been consigned, the persons composing said company having absconded before the arrival of the oranges in Decatur. The court sustained the plaintiff's motion to dismiss the claim, and rendered judgment condemning the property levied upon to the satisfaction of the plaintiff's attachment. The claimants now bring...