Seamans v. White , 8 Ala. 656 ( 1845 )

ORMOND, J.

When a claim is interposed tinder the statute, to property levied on byan attaching creditor, the suit consequent upon the interposition of the claim, is wholly independent of the attachment, at least, so long as the attachment suit is pending. It is therefore unimportant when the claim suit is determined, whether á judgment has been obtained by the plaintiff against the defendant in attachment, or whether the suit is still .pending. If it has not been determined against the plaintiff in attachment, upon obtaining a verdict in the claim suit, against the claimant, he is entitled to ■ a judgment of condemnation of the property, viz: that it is subject' to the levy of the attachment, and that it be condemned to the satisfaction of the judgment, if one is obtained.

Such is, in effect, the judgment of the Court in this case. The attachment suit being in the justice’s court, it does not appear whether a judgment has been obtained against the defendant, or not. If such a judgment has been or is hereafter obtained, the waggon may be sold -under an execution issued upon that judgment. If no such judgment exists now, or is rendered hereafter, the claimant cannot be prejudiced, because in no event can an execution issue upon this judgment, except for the costs. The finding of the jury that the waggon was liable to the plaintiff’s demand, and their assessment of its value, was mere surplusage ■ which does not vitiate the residue of the verdict, in which they find the issue for the plaintiff.

We can perceive no error in the charge of the Court. Although ordinarily, when it is proved that an article has been sold and delivered, the payment of the consideration may be presumed- until the contrary is shewn, yet when the creditors of the vendor assert a claim to the property .thus sold, and circumstances exist raising a doubt of the fairness of the transaction, between the vendor and vendee, it is incumbent on the latter to prove the payment of an adequate consideration. The facts proved in this case were sufficient, if believed by the jury, to cast suspicion upon the sale, and to justify the jury in inferring that the transaction Was fraudulent, unless shown to be otherwise by proof of a sufficient consideration.

The original security given for the appeal, being objected to as insufficient, an order was made that “ the plaintiff give new security in sixty days, or be dismissed.” Pursuant to this order, a new bond was executed, with Dukemenier as surety, which it appears was accepted. This was a substitution of the new for the former surety, and operated to discharge the former from all liability. The surety was not, however liable beyond the penalty of his bond, and the judgment against him for an indefinite sum — the costs of the action, which might be for more than the penalty of the bond, and in this case was greatly beyond it, was unauthorized. The proper judgment to be rendered was, against the plaintiff and his surety for the costs, not exceeding the penalty of the bond, and for the excess, if any, against the plaintiff.

Such'a judgment as the present, was held to be a clerical mis-entry, in McBarnett & Kerr v. Breed, 6 Ala. 476, and as such a judgment could have been amended in the Court below, by motion of the plaintiff, it will be ameñded in this Court at his costs. Such must be the judgment entered in this case.

As the parties went to trial before a jury, without notice of the former order, to arbitrate the matter, it must, in this Court, be considered a waiver of the order.

Let the judgment be remanded, at the cosf’of the plaintiffs in error.