106 Ala. 292 | Ala. | 1894
— This was the statutory proceeding known as a trial of the right of property, instituted by the appellant as claimant in the criminal court of tho county of Pike, to try the right to personal property upon which the sheriff had levied an execution issuing from that court. The proceeding is essentially a civil suit; it has all the form and substance of an ordinary civil action. It is instituted by the verified claim of a stranger to the process the sheriff levies, and the giving of the bond the statute prescribes. Then, the plaintiff in the process becomes the actor, and on him rests the burden of proving the affirmative fact asserted by the levy of the process, that the property is the property of the defendant in the process, and subject to its satisfaction. — Code, § 3005; Rhodes v. Smith, 66 Ala. 174. It is a cumulative remedy, and can be maintained only when the claimant could have maintained trespass, trover, or detinue. — 3 Brick. Dig. 776, § 7. The claimant resorting to the remedy, thereby releases the sheriff from all liability for damages for the seizure of the property. — Code, § 3016.
The criminal court, is strictly and narrowly a court of exclusive criminal jurisdiction. The amendatory act, approved February 6, 1891, clothes the court with “authority to grant writs of injunction and ne exeat returnable to the courts of chancery, and writs of certiorari,
The judgment is reversed, but of the cause there will be no remandment.