White v. Sheffield & T. St. Ry. Co.

• Decision Date: 21 May 1890
• Citation: 7 So. 910,90 Ala. 253
• Court: Alabama Supreme Court
• Parties: WHITE v. SHEFFIELD & T. ST. RY. CO.

7 So. 910

90 Ala. 253

WHITE v. SHEFFIELD & T. ST. RY. CO.

Supreme Court of Alabama

May 21, 1890

Appeal from circuit court, Colbert county; H. C. SPEAKE, Judge.

Kirk & Almon, for appellant.

J B. Moore, for appellee.

STONE C.J.

The appellee brought suit against the East Tennessee, Virginia &amp Georgia Railroad Company for the recovery of "one dummy engine of the value of two thousand dollars, with the value or hire thereof during the detention." The suit was instituted under our statute, (Code 1876, § 2942; Code 1886 § 2717), which is a substitute for the common-law action of detinue. Under the statutory action, if affidavit be made and bond given, as the statute requires, the sheriff is commanded to take the property into possession, and under such order the sheriff did in this case take the engine into his possession. That statutory action of detinue has not been tried, so far as the record informs us. We have also in this state a statutory action, or collateral proceeding, which is known as "a trial of the right of property." It was created to meet the exigency presented when the sheriff, under execution or attachment against one, seizes goods as the property of the defendant in the process, which goods a third person, stranger to the process, claims are his property. It fills the office (but does not supersede it) of the common-law action of trespass, when a stranger to the process alleges that a levy has been made on the property which does not belong to the defendant, but to him, the claimant. A later statute extended the remedy of a claim suit, or trial of the right of property, to actions of statutory detinue, whenever property is seized in such action, which a third person, stranger to the suit, claims is his property. Code 1876, § 3350; Act approved February 26, 1889, (Sess. Acts, No. 59.) The mode of instituting such claim or collateral suit is as follows: "When a suit is brought for the recovery of personal property in specie, under the provisions of section 2717 of the Code of Alabama, and the defendant shall neglect for five days to give bond, as required therein, if the property seized is claimed by a person not a party to the suit, and affidavit and bond be executed as required by law in cases of trial of right of property when levied on by writ of fieri facias, the property must be delivered to the claimant, and the affidavit and bond be returned by the officer having in charge the property claimed, with the summons, upon which the same proceeding must be had as in other trials of the right of property." It will be seen that when, in a statutory detinue suit, a claim to the property is interposed by "a person not a party to the suit, *** the same proceeding must be had as in other trials of the right of property." It follows that, in determining the questions raised by this record, we must be governed by the rules which would govern us if the engine had been levied on under execution or attachment at the suit of the appellee street railway company against the East Tennessee, Virginia & Georgia Railroad Company, and a claim had been interposed by a third person under sections 3004 or 3012 of the Code of 1886. For the rules in such claim suits, see authorities in notes to the sections cited. And we may state that section 2611 of the Code of 1886-the statutory interpleader-can exert no influence in the trial of this cause, for the proceeding is not under that statute.

No question can be raised in this case as to the rightful use of the corporate name of the Sheffield & Tuscumbia Street Railway Company in bringing the suit out of which the present one grew. Whether the persons who caused the action of detinue to be instituted were the rightful officers of the corporation, entitled to sue in its name, was a question in which the claimant, as such, had no interest. It was foreign to the issue raised by his claim, which only raised the question of title between the plaintiff in detinue suit and the claimant, White. When the plaintiff made the proof it did, showing that when the suit was commenced, and when the engine was seized by the sheriff, it was standing on a railroad track which was under the management and control of the East Tennessee, Virginia & Georgia Railroad Company, it showed a prima facie right to sue that railroad company for the recovery of the engine; and a claimant under the statute would not be heard to assert that the possession was held in his interest, and subject to his control, unless the legal right of the claimant was paramount to that of the street railway company; for that was the issue in this claim suit. If the plaintiff proved its legal right to the engine, White, the claimant, could not defend on the ground, if true, that the East Tennessee, Virginia & Georgia Railroad Company had not the possession of the engine when the suit was commenced; for such proof could not aid in determining whether the street railway's or White's was the better title. These plain principles relieve us of the consideration of many questions which have been pressed in argument.

There does not appear to have been any denial in the trial court that the Sheffield & Tuscumbia Street Railway Company purchased and paid for the engine, and that it was its property. The claimant in his testimony...