89 Ala. 604 | Ala. | 1889
When a claim is interposed to property levied on under process, our statutes provide for a collateral issue and trial, called a trial of the right of property. When such claim is interposed, the claimant is required to make oath that he has a just claim or title to the property, and to give bond with sureties, conditioned to have the property forthcoming for the satisfaction of the judgment or claim, if found subject thereto. — Code of 1886, §§ 3004, 3012, 3365. When claim is thus interposed, and bond given, the property levied on is delivered to the claimant. , The claim suit being thus inaugurated, an issue is made up, and trial of the right or title to the property then takes place. If, on the trial, the property is found subject to the process, the inquiry and finding must go further, and ascertain the value of the property levied on.—3 Brick. Dig. 779, § 50. If, after condemnation, the property is not restored to the officer making the levy, within the time prescribed by law, the levying officer must return it, with his indorsement that it is forfeited. — Code, §§ 3008, 3368. Thereupon execution is issued “against all the obligors in the bond, for the amount of the judgment against the defendant, if that is less than the value of the property as assessed by the jury (or justice of the peace), or for the amount of such assessed value, if less than the amount of the judgment; also for the damages, if any were assessed, and for the costs of the trial of the right of property.”—Ib.
This whole proceeding is statutory, and it is only by virtue of the statute that execution can issue against the sureties, for they are not parties to the judgment. When the levying
There is, perhaps, another difficulty in this case. There was no trial of the right of property, and no assessment of its value. It would be well to inquire if ah execution can issue in such a case as this, and whether or not a suit on the bond is the only remedy. We do not decide this, and it is not before us.
The judgment of the Circuit Court is reversed, and a judgment here rendered quashing the execution, at the costs of the appellee in the Circuit Court and in this court.
Reversed and rendered,