Dismissal of claim on levy was not error, the issue of title having previously been adjudicated against the claimant.

DECIDED APRIL 20, 1942. On June 9, 1937, K. D. Sanders caused to be issued a distress warrant against J. D. McAlister. A levy was made on a 1936 International pick-up truck, motor No. HD59198, found *Page 280 in the possession of J. D. McAlister. J. D. McAlister filed a counter-affidavit in which he denied the indebtedness. On August 7, 1937, J. H. McAlister filed a claim to the truck. On March 23, 1938, a jury returned a verdict in favor of Sanders against J. D. McAlister for $89. On the same date the claim case of J. H. McAlister was tried, and a jury returned a verdict finding the truck subject to the levy. There was no motion for new trial in the claim case by J. H. McAlister, but J. D. McAlister filed a motion for new trial in the distress-warrant proceeding. The motion was overruled, and he excepted. This court reversed the judgment, because of the admission of certain testimony. On September 20, 1939, the issues in the distress-warrant proceeding were again tried and judgment was again rendered in favor of Sanders against J. D. McAlister for $89. A fi. fa. issued on this last judgment on April 11, 1940, against J. D. McAlister, and was levied on the same truck which had been seized when the distress warrant was issued. J. H. McAlister again filed a claim, which was dismissed on the ground that no sufficient bond was filed with the claim. Thereafter, on March 19, 1941, J. H. McAlister filed a second general claim for the truck in question. The attorney for Sanders filed a motion to dismiss on the ground of res judicata. The court sustained this motion and J. H. McAlister excepted.

Since there was no appeal from the judgment of March 23, 1938, finding the property subject, and since the question of title as between Sanders and the claimant, J. H. McAlister, had been adjudicated, and since the truck remained under levy from the time it was first levied on under the distress-warrant proceedings until the last claim was filed by J. H. McAlister, and since the record does not reveal anything to show in his claim or otherwise that he has acquired title since the jury found against him, he was not entitled to have the same issue tried again.

The judge did not err in sustaining the motion and dismissing the claim.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur. *Page 281