70 So. 204 | Ala. Ct. App. | 1915
Lead Opinion
The appellant sued out a writ of detinue before a justice of the peace against E. J. Godfrey for the recovery of certain specific personal property which, as the officer’s return on the writ shows, was seized under the writ and return thereof made to the justice. The transcript of the proceedings before the justice recites the following: “This cause coming on to be heard, the defendant ma.de and filed an affidavit that R. L. Hunter owns the property or wire sued for, and prayed for process to to issue to said Hunter, whereupon by agreement in open court notice to the said Hunter was waived, and E. H. Hill appeared for Hunter and the case was continued generally until the 9th day of April, by consent of parties.”
The transcript further shows that Hunter appeared in person and by his attorney on the 9th of April, 1913, the case was tried and was held under consideration by the justice until the 16th day of April, when judgment was rendered against Hunter for the property, the subject of the controversy here. The time for appeal having expired, Hunter on the 28th day of May removed the case to the circuit court by statutory certiorari, where a judgment was rendered against the appellant for the costs.
Appeal dismissed.
Rehearing
ON REHEARING.
In disposing of this case on original consideration, it was treated as one governed by section 3792, authorizing the institution of'a trial of the right of property between the plaintiff in an action of detinue and a third party on the initiative of the third party, who claims the property; and, reaching the conclusion that the effort shown by the record to bring Hunter, the third party, into the case as a claimant was abortive and the judgment against him void, the appeal was dismissed.
Application overruled.