Langworthy v. Goodall, McLester & Co.

76 Ala. 325 | Ala. | 1884

SOMEBYILLE, J.

— The judgment is manifestly erroneous. When an execution is levied upon personal property claimed by a stranger, and such property is restored to the claimant, upon his making affidavit that he has a just claim to it, the bond which he is required by the statute to execute is conditioned “to have the property forthcoming for the satisfaction of the judgment, if it be found liable therefor,” and for the payment of costs, and damages for delay.' — Code, 1876, §3341. The judgment against the claimant, therefore, in the first instance, must be one of condemnation of the property, declaring it liable to the satisfaction of the execution, as the property of the defendant in such execution. Where the levy is under an execution, and not a mere attachment unreduced to judgment, a judgment directing the property to be sold, to satisfy the execution, has been held not to be erroneous. — Tyler v. Dennis, 2 Ala. 144. A moneyed judgment for the assessed value of the property, or for the amount of plaintiff’s execution, can not be rendered against the claimant and his sureties, until the bond is declared forfeited for failure to deliver the property to the sheriff, in the manner required by section 3344 of the Code. The judgment, in this case, is a moneyed judgment rendered against the claimant and his surety, without any forfeiture of such bond, and not a judgment of condemnation of the property in the hands of the claimant, as it should have been.

The issue submitted tó the jury in the case was, whether the claimant, Lang worthy, when he sold the property in controversy to the defendant in execution, Wooten, retained the legal title in himself by way of conditional sale. Upon the trial of this issue, it was entirely irrelevant tu enter into an investigation of Wooten’s financial standing, the amount of property owned by him, and other collateral matters, touching the question of his good or bad credit. The inference that the sale was absolute, and not conditional merely, because of the vendee’s reputed solvency, is too remote, the financial condition of the vendee being a matter purely collateral, and affording no reasonable presumption as to the principal matter in dispute, which was one of legal title alone.

It was equally irrelevant, to prove that the claimant had sold similar articles of property to other persons, without retaining the legal title. This evidence was also collateral to the matter in dispute, and tended to draw away the minds of the jury from the real question at issue, — probably to excite some prejudice in their minds, and to mislead them. If the rule were otherwise, as observed by Mr. Qreenleaf, “ the true merits of the controversy might be lost sight of, in the mass of testimony to other points, in which they would be overwhelmed ; the attention of the jury would be wearied and distracted; judicial investigation would become interminable ; the expenses might be enormous, and the character of witnesses might be assailed by evidence which they could not be prepared to repel.” 1 Green. Ev. §§ 448, 52; Singleton v. Thomas, 73 Ala. 205.

If the evidence in question showed that the forms of contracts used in sales made to third parties were identical with the lost one which is sought to be proved, by reason of being printed from the same forms of type — thus being in the nature of duplicate originals, with the exception of dates and parties— we are not prepared to say that the contents of the one could not be proved by showing the contents of the other. This is not the case before us.

The judgment is reversed, and the cause remanded.