Arnold v. Cofer

135 Ala. 364 | Ala. | 1902

DOWDELL, -T.

This is a claim suit for the trial of the right of property levied on under a writ of attachment. The suit originated in the justice court, where an attachment was sued out for the collection of rent. On the trial in the justice court a judgment was rendered in favor of the claimant, from which the plaintiff appealed to the circuit court. The justice sent up the original papers and a certified transcript of the proceedings in the cause. This was a compliance with the statute. In the circuit court- the claim suit was tried in the usual manner on issue made up under the direction of the court. The bill of exceptions recites that judgment ivas rendered in the justice court in the original suit in favor of the plaintiff. The record proper, however, shows that the judgment in the justice court was in favor of claimant and against the plaintiff, and that the plaintiff appealed from this judgment to the circuit court. The recital, therefore, in the bill of exceptions is clearly a clerical misprision.

On the trial in the circuit court, the bill of exceptions recites, that “plaintiff offered in evidence attachment, bond and affidavit in justice court, made on May 26th, 1809, in due form,” etc. “Claimant objected to the same, because^ illegal, irrelevant, and immaterial. The court overruled the objection, and claimant excepted.” It is here urged that the court erred in admitting in evidence the affidavit over the claimant’s objection, citing Dollins & Adams v. Pollock & Co., 89 Ala. 361. The objection, however, was general as to all of the papers offered, and the. attachment writ, showing the levy, was certainly relevant and competent, -and the court on a general objection was not required to separate the illegal from the legal evidence. There was no reversible error in this ruling.

The plaintiff was permitted to show by the officer making the levy, that the property levied on, was at the time of the levy on the premises occupied by the defendant, and the purpose was to make a prima, facie. case by showing possession in defendant. The claimant, who was the Avife of the defendant, sought to shoAv in rebuttal of this, by parol that the title of the premises on which the property levied on Avas found, Avas in her. This she could not do by parol evidence, and the court committed no error in sustaining the plaintiff’s objection.

The defendant in attachment Avas examined as a witness on behalf of the claimant. On his cross-examination, he testified that he bought the coav levied on. On the re-direct examination, the claimant asked the witness “for whom the cow attached was bought.” On objection of the plaintiff, the witness was not permitted to answer the question. The question called fox» a conclusion of the witness, which embraced a secret or undiscovered intention at the time of the, purchase of the cow, and there was no error in sustaining the objection.

There was no error in admitting in evidence the tax assessments showing that the husband had given in the property as his and in his own name. While it was not evidence of title as against the wife, it was competent evidence as contradicting the testimony of the husband, who was examined as a witness in behalf of the wife and testified that the property in question was his wife’s. It certainly tended to weaken the probative force 'of his testimony.

There was no error in sustaining plaintiff’s objection to introduction in evidence of a copy of what purported to be'a receipted bill for the range. This bill was dated July 6th, 1899, which was after the date of the levy of the attachment, and if it showed anything, it showed payment for the range after plaintiff’s lien liad attached.

The writer fails to see the relevancy or materiality of the evidence as to what money the defendant may have received from some estate or on some judgment since his marriage with the claimant. The majority of the court, however, are of the opinion that the evidence was relevant and competent, and, therefore, properly admitted.

The charge given at the request of the plaintiff was argumentative, and may have been such as to have called for an explanatory charge on behalf of claimant, and for these reasons might have been properly refused; but neither of the objections mentioned is sufficient to constitute reversible error in the giving of the charge.

The charge refused to the claimant was' argumentative, and for that reason, if no other, the court was justified in refusing it.

It was error to render judgment against the obligors on the claim bond.' “Upon the trial of right of property levied on by attachment, if the issue be found against the claimant, the appropriate judgment is a condemnation of the property; that it is subject to the levy of the at-tacliment,. and is condemned, to the satisfaction of the judgment which has been or may be rendered.”—Seisel v. Folmar & Sons, 103 Ala. 491. The error, however, is not such as- to require a reversal of the judgment, since it may be here corrected.

The judgment will be here .corrected, and as corroded, will be affirmed.