Singer Sewing Machine Co. v. Henderson

56 So. 108 | Ala. Ct. App. | 1911

PELHAM, J.

The judgment entry in the record in this case recites an order of the court overruling plaintiff’s demurrers to defendant’s plea No. 1, and the further recital: “And the plaintiffs make known to the court that they will take a nonsuit in this case with a bill of exceptions. It is considered and adjudged by the court that a nonsuit be entered in this case, with a bill of exceptions.”

The provisions of section 3017 of the Code of 1907, providing for the sufferance of a nonsuit, do not require a bill of exceptions when the rulings complained of and which it is sought to review are matters which appear from the record proper; a bill of exceptions is only necessary when the nonsuit is suffered in consequence of adverse rulings on matters not otherwise appearing of record. If it appear that the nonsuit was suffered in consequence of the ruling of the trial court on matters that appear in the record proper, and the purpose of bringing them, up for review, this is sufficient, and it is not necessary that there be an express statement to that effect.— Laster et al. v. Blackwell, et al., 128 Ala. 143, 30 South. 663. It is sufficiently shown that the nonsuit was suffered by appellant (plaintiff below) to review the adverse ruling of the trial court in overruling plaintiff’s demurrer to defendant’s plea No. 1.

Defendant’s plea No. 1 sets up want of consideration of the bond sued upon. Under section 5324 of the Code of 1907, the defendant is given the right by plea to impeach or inquire into the consideration of an instrument under seal in the same manner as if it was not under seal. The demurrers to the plea confessed the facts set up by it, and they were sufficient to constitute a good defense to the action on the bond. The demurrers but tended to confuse the issues, and were properly overruled. The sheriff having made a return of the writ in detinue, the writ became functus officio, and all further acts in attempting to execute the writ upon the part of the sheriff were without warrant or authority of law. He had no authority to 'do anything further looking to an execution of the process after its return, and his acts under such circumstances would be those of a trespasser. His authority under it ceased upon making a return of the writ, and any seizure made after that time was as much without authority in law as if no writ existed. The seizure being without authority, the plaintiff had a right to the goods without giving bond, and consequently the bond executed was, under the facts set up in the plea, wholly without consideration. The case of Counts v. Harlem, 78 Ala. 551, is in point and decisive of the issues presented. The distinguishing difference between this case and the cases cited and relied upon by counsel for appellant lies in the fact that in all of those cases there was a consideration underlying the bonds sued upon.

No error appearing of record, the judgment of the trial court is affirmed.

Affirmed.