Pace, Lavender & Harper v. Lee & Co. , 49 Ala. 571 ( 1873 )

BBICKELL, J.

— Notwithstanding the defects in the mode of prosecuting this appeal, we think it sufficient to confer jurisdiction on the court. If we should sustain the motion to dismiss, it would probably lead to the prosecution of a new appeal, when the same questions now presented would again arise for consideration. As these questions do not seem to us difficult, or doubtful, we have concluded to pass over the motion to dismiss, especially as thereby no injury can result to the appellees.

1. Four of the assignments of error refer to irregularities in the rendition of judgment against the defendant in attachment. If these irregularities exist, that judgment is not before us for revision on this appeal. The judgment from which the appeal is taken, is the judgment against the appellants as claimants on the trial of the right of property; not the judgment against the defendant in the attachment suit. Since the decision in Collingsworth v. Horn (4 Stew. & Porter, 221), it has been uniformly and repeatedly adjudged by this court, that the claimant, on the trial of a right of property, cannot question the validity of the judgment, or the regularity of the process under which the property is sought to be condemned. Such an inquiry is foreign to the issue between the parties. Whether he may or may not show the judgment or the process to be void, is another question. He cannot show that it is merely irregular, or erroneous. Harwell v. Floyd, 3 Ala. 16; Fryer v. Dennis, 2 Ala. 144; Perkins Elliott v. Mayfield, 5 Porter, 182.

2. The remaining assignments of error question the regularity of the judgment against the appellants, as claimants of the property levied on by the attachment. The .facts shown by the record are, that after the levy of the attachment, W. B. Harper made affidavit that the property attached “ is the property of Pace, Lavender & Harper, and that the said Pace, Lavender & Harper have a just claim to said property.” At the same time, he executed his individual bond with surety, in which it is recited, “ the above named W. B. Harper has, the day of the date hereof, filed a claim,” &c. It appears that, on the making of this affidavit, and the execution of this bond, the sheriff surrendered the property attached, returned the affidavit and bond, with the attachment, to the Circuit Court. The cause is styled in the entry of judgment against the defendant in attachment, as “ P. Lee & Co., pl’ffs v. James A. Fountain, deft; Pace, Lavender & Harper, claimants; ” and the order is, “ that an issue be made up between the plaintiffs and the said claimants, to try the right of property,” &c. In this entry it is recited, that Harper, who made the affidavit, and gave the bond, is a member of the firm of Pace, Lavender & Harper. The proper issue is tendered by the plaintiffs, and is entitled as is the judgment entry. The judgment against the appellants is by default, and the style of the case is that adopted in the judgment entry against the defendants in attachment. This judgment recites, that the appellants were claimants, and the judgment is against them as such. The application of the appellants for an appeal from this judgment is in writing, and the cause is entitled as in the minute-entries to which we have referred, and recites, “ the claimants in this case, Pace, Lavender & Harper.” It is assigned as error, that it does not appear that the claim suit was instituted by the appellants, or by their authority, and that it‘does not appear that Harper, who made the affidavit and gave the bond, was a copartner of Pace, Lavender & Harper.

The proceedings are not very formal; but we think it sufficiently appears that Harper, who made the affidavit and gave the bond, is a partner of, or jointly interested with the appellants. The affidavit he makes is not of a personal ownership of, or claim to the property attached, but it is of the ownership and claim of Pace, Lavender & Harper. The claim to property levied on must be interposed by the person having the right, or some one representing him. By the interposition of a claim, the right and title of the claimant only is put in issue. On that he must rely, and cannot set up an outstanding title in a stranger, no matter how valid and sufficient, to defeat the levy. Thomas v. De Graffenreid, 17 Ala. 602; Cotten v. Thompson, 21 Ala. 574. Construing the entire record in connection with this well settled rule in reference to trials of the right of property, it sufficiently appears that the appellants were claimants. Under the affidavit made by Harper, no other right or title than that of the appellants could have been tried. An individual right of Harper’s, with which the other appellants had no connection, would not have supported the claim, and could not have been given in evidence.

The judgment of the Circuit Court is affirmed.