Roberts v. Burgess , 85 Ala. 192 ( 1887 )

OLOPTON, J.

In this proceeding, which is a statutory trial of the right of property, the issue joined was, whether the property levied on is the property of the defendant in attachment, and liable to its satisfaction. The claimant, for the purpose of disproving the prima facie case made by the plaintiff, introduced in evidence certain transfers under which she claimed to have acquired title. In rebuttal, it was admissible for the plaintiff to show the exercise of acts of ownership by the defendant in attachment, of which the claimant had knowledge, and to which she made no objection. Proof that before the levy of the attachment he mortgaged the property to another creditor, and that claimant was present and consented to the same, was competent and relevant. There was no attempt to prove the contents of the mortgage; and that proof of the mere fact of execution, when the mortgage comes in question . collaterally or incidentally, may be made without its production, has been settled in several cases. — Green v. Jordan, 83 Ala. 220; Hancock v. Kelly, 81 Ala. 368; Snodgrass v. Bank, 25 Ala. 161. If conceded that the evidence relating to the mortgage made after the levy was illegal, it not appearing that claimant had knowledge thereof, the motion to exclude goes to the whole evidence respecting both mortgages; and a part 'being legal, the court committed no reversible error in overruling the motion. — Glaze v. Blake, 56 Ala. 379; Hays v. Woods, 72 Ala, 92.

There is nothing objectionable in the form of the judgment. When an attachment is levied on property, to which a claim is interposed under the statute, it is immaterial whether or not, at the trial of the claim suit, a judgment has been rendered on the attachment. Whether or not rendered, the plaintiff is entitled, if the issue is found in his favor, to a judgment, that the property is subject to the levy of the attachment, and of condemnation to the satisfaction of the judgment if one has been or shall be obtained. Such is the effect of the judgment in this case. The record does not show that a judgment had or had not been rendered in the attachment suit; but, if not, the claimant can suffer no injury, since no execution, except for costs, can issue, until there is a recovery of judgment against the. defendant in attachment. Seamans v. White, 8 Ala. 656.

The value of the different items of property was assessed separately, in substantial conformity to the statute. — Code, 1886, § 3007; Townsend v. Brooks, 76 Ala, 308,

Affirmed.