6 Port. 447 | Ala. | 1838
The defendants in error having recovered a judgment' against Seaborn J. Sorrell, in the Circuit court of Dallas, caused a fieri facias to bé issued thereon, and levied upon sundry articles of merchandise in his possession. To the property thus levied on, John Hardy and John Sorrell interposed a claim according to the statute in such cases, and together with P. Walter Herbert, their co-plaintiff, entered into bond to try the right. On the trial of the right of property, the defendants in error offered in evidence, their execution on which the levy was made, to which the claimants objected, unless the judgment was first produced; but the court overruled the objection, and allowed the fi. fa., together with the return of the sheriff to be read to tha jury; whereupon the claimants excepted, &c.
In regard to the first question arising upon the bill of exceptions, it was determined in Carlton et. al. vs. King,
It is true, that the statute of eighteen hundred and twenty-eight,
A verdict of condemnation, followed by a judgment, as in the present case, must be taken as conclusive against the right of the claimants, (and all claiming under them) and they would not be allowed to litigate the question of its liability, to the satisfaction of the execution, in any controversy afterwards arising.
We have considered the verdict and judgment only
We have no statute authorising the rendition of a judgment against a surety for costs, (in a case of this kind) directly upon the return of the verdict of the jury. And without the authority of a statute, there can be no pretence for maintaining the regularity of such a judgment.
For the error in this particular, the judgment must be reversed, and rendered here against the proper parties.
1 Stew. & Por. 472.
Aik. Dig. 170.
Aik.Dig. 169, 170.