Southern Elec. Supply Co., Inc. v. Borden
| Decision Date | 08 May 1974 |
| Citation | 295 So.2d 256,52 Ala.App. 535 |
| Parties | SOUTHERN ELECTRIC SUPPLY COMPANY, INC., a corporation, et al. v. W. A. (Bill) BORDEN et al. Civ. 271, Civ. 271-A. |
| Court | Alabama Court of Civil Appeals |
O'Bannon & Gonce and John R. Formby, Jr., Florence, for appellants.
No brief for appellees.
Appellant, Southern Electric Supply Company, Inc., appeals from the action by the Circuit Court of Lauderdale County, Alabama, in granting a petition for writ of supersedeas filed by appellee on June 21, 1972. The court's final order in granting the writ of supersedeas held that a prior forfeiture judgment rendered against the bond sureties on January 16, 1967, would not support an execution; and that the forfeiture and execution issued in favor of appellant and against the appellee sureties were permanently and perpetually suspended and superseded.
We point out that these parties have recentl been before our supreme court involving the same facts and, therefore, we direct attention to Southern Electric Supply Co. v. Borden, 288 Ala. 303, 260 So.2d 387, and will only recite those facts pertinent to our case and those occurring after the March 30, 1972, decision authored by Mr. Justice Lawson.
On January 16, 1967, the Sheriff of Lauderdale County entered a forfeiture on the bond of which appellees are sureties because of failure of the sureties to present an automobile for sale on October 17, 1966, as required by the bond. The sheriff acted under the provisions of Ala. Code (1940), Tit. 7, § 563, which provides as follows:
'If the property is not delivered according to the condition of the bond, the sheriff must return it forfeited within five days thereafter to the register or clerk's office out of which the execution issued, indorsing thereon a forfeiture of the bond; and it is then the duty of the clerk, or register, without delay, to issue execution on the forfeited bond against all the obligors therein for the judgment and costs, upon which no security of any kind can be taken, which he must indorse on the writ.'
This forfeiture, under the above quoted section, acts as a limited statutory judgment and supports execution upon such forfeiture. See Huett v. Nevins, 255 Ala. 37, 50 So.2d 160.
On May 4, 1972, after the aforementioned decision by our supreme court, appellant again sought execution by alias execution of the January 16, 1967, forfeiture entered by the Sheriff of Lauderdale County. Thereafter, on June 21, 1972, appellees filed their petition for writ of supersedeas in the Circuit Court of Lauderdale County, Alabama, seeking to supersede the execution on the January 16, 1967, forfeiture. This petition is the basis of the instant suit.
The petition alleged, in pertinent part, essentially the same facts as set forth in the bill of complaint in Southern Electric Supply Co. v. Borden, Supra; and, further, asked for legal relief by supersedeas to order and direct appellants to cease and desist from any action against appellee-petitioners pending final hearing of the cause; and, that upon final hearing, the lower court should enter an order permanently prohibiting appellants from further attempts on their part to collect the January 16, 1967, statutory judgment.
Appellant then filed a plea in abatement; appellee amended his petition for writ of supersedeas; appellant amended his plea in abatement; appellee's demurrer to the plea in abatement was overruled and a hearing was set. On March 2, 1973, the circuit court overruled appellant's plea in abatement and granted appellee's petition for writ of supersedeas.
The judgment of the court was apparently bottomed upon two premises. First, that a temporary restraining order issued October 13, 1966, by the Colbert County Circuit Court prevented the Sheriff of Lauderdale County from selling the automobile on October 17, 1966. Second, that the sheriff did not comply with the provision in Ala. Code (1940), Tit. 7, § 563, that the sheriff must return the bond within five days after forfeiture.
Appellant's dispositive assignment of error is that the lower court erred in granting the petition for writ of supersedeas. Appellee did not favor this court with a brief.
It appears that appellee proceeded under Ala. Code (1940), Tit. 13, § 128, which reads as follows:
'The circuit court has power after final judgment:
'To correct any error in fact in the judgment or process apparent upon the whole record.
'To secure parties or privies in their rights against any oppression or abuse of execution, or other process, or upon any release, discharge, or payment after judgment.'
It has been held that the grounds for relief in proceedings under this section, City of Birmingham v. Reed, 35 Ala.App. 31, 36, 44 So.2d 607, 611, 612.
Our cases have held that relief by way of supersedeas is equitable in nature and usually rests on facts occurring subsequent to the original judgment. See Huett v. Nevins, Supra, and cases cited therein.
In Ex parte Brickell, 204 Ala. 441, 86 So. 1, the supreme court discussed several cases setting forth the general principles of law in reference to proceeding for relief by supersedeas. Of particular note is the controlling proposition that if...
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