Babcock v. Williams , 9 Ala. 150 ( 1846 )

ORMOND, J.

It has been established by the previous decisions of this Court, that where an execution has been levied on property, and bond given to try the right, a junior execution cannot be levied on the same property, pending the trial, though the property is left with the defendant in execution. [Kemp & Buckeye v. Porter, 7 Ala. Rep. 138.] This being the fact, in regard to the two last levies made in this case, would have been decisive against their validity, if- the objection had been taken in the Circuit Court, previous to the judgment on the trial of the right of property, and the only question is, whether the surety in the cláim bond, can be prejudiced by the omission of his principal to interpose the objection.

In our judgment he is not. He was not a party to that proceeding, and is not concluded by it. The facts-then, are, that a statute judgment has been obtained against him-, for not doing that which it was impossible for him to do, the slave having been previously delivered to the sheriff, and sold under the prior execution of the Bank.

- The interposition of the claim, did not in the slightest degree affect the junior judgment creditors,-or abridge any of their rights, but was superinduced by their own act, in levying on property which was then in the custody of the law, and not subject -to be levied on.

Nor does it-vary the case in the slightest degree, that the County Court had not jurisdiction of the trial of the right of property. •- The'institution of that proceeding was the act of the claimant, in which the plaintiff in execution did not participate; it did not. therefore affect the lien of the senior creditor, which continued until that suit was determined, when the execution was again- reissued-,- and levied on the same property. ,

This is a full and complete answer to the levy of the plaintiffs in error, but it is one which the complainant has had no opportunity to make at law, as the statute judgment consequent upon the return of the sheriff, is rendered ex parte. In such cases, it has been repeatedly held by this court, that the party aggrieved may seek redress in equity, and it may be added, can obtain it no where else.

The case, when stripped of all adventitious circumstances, is that, of a surety for the delivery of property, levied on by three judgment creditors, which he has delivered up, and which has been absorbed by the senior execution. Upon no principle-' of justice or equity, can he be made responsible for the deficiency.

W e think however, he should be taxed with the costs of the Court of Chancery, the resort to which he might have prevented, .by an application to the court of law, upon the. trials of the right of property. The costs of this court, must be paid by the plaintiffs in error. With this modification, the decree of- the Chancellor must be affirmed.