Stern v. Butler

• Decision Date: 30 June 1899
• Citation: 26 So. 359,123 Ala. 606
• Parties: STERN ET AL. v. BUTLER ET AL.
• Court: Alabama Supreme Court

26 So. 359

123 Ala. 606

STERN ET AL. v. BUTLER ET AL.

Supreme Court of Alabama

June 30, 1899

Appeal from circuit court, Henry county; J. W. Foster, Judge.

Proceedings of Stern & Co. against Butler & Stevens to determine adverse claims to money in hands of sheriff. From a judgment in favor of claimants, plaintiffs appealed. Reversed.

On the 1st day of February, 1897, Butler & Stevens sued out of the circuit court of Henry county, Ala., a writ of attachment returnable to said court, and had the same levied by the sheriff on a lot of property belonging to the firm of Nicholson, Blount & Co. The latter firm was insolvent at the time, and the property levied on under said attachment was all the property that they owned that was liable for the satisfaction of their debts. The said Butler & Stevens prosecuted their attachment to judgment on the 13th day of April, 1897, and had the proceeds of the sale of the property levied on in the hands of the sheriff condemned to the satisfaction of their judgment. The plaintiffs, Stern & Co. creditors of the said Nicholson, Blount & Co., obtained judgment against them on the 8th day of April, 1897, and the same day had garnishment issued on their judgment and served on the sheriff. The latter on the 6th of October, 1897, filed his answer, setting up the fact that he had in his possession the sum of $1,400, the proceeds of the sale of property of Nicholson, Blount & Co. levied on under the writ of attachment in favor of Butler & Stevens, and that the latter claimed the same. Upon the coming in of the answer, the attorney of Butler & Stevens appeared and waived notice, and subsequently filed and propounded their claim to the money admitted to be in his possession by the sheriff. On the trial of the claim suit the parties appeared by their attorneys and issue was made up. The judgment of the plaintiffs against Nicholson, Blount & Co. was proven. Plaintiffs also proved that their judgment had not been paid; the answer of the garnishee was introduced in evidence; the affidavit, bond and writ of attachment in the case of Butler & Stevens against the said Nicholson, Blount & Co.; the judgment in that case. The insolvency of Nicholson, Blount & Co. was proved. Also, proved that the property levied on under claimants' attachment was all the property that the defendants owned liable to the payment of their debts; that plaintiffs' debt was due and owing at the time of the levy of the attachment; that claimants' debt was also due and owing at the time they sued out their attachment. Plaintiffs then offered to prove by one Harris, the agent of the claimants in the suing out of their attachment, that the same was sued out and levied as the result of an agreement between Butler & Stevens and Nicholson, Blount &...