Schamagel v. Whitehurst , 103 Ala. 260 ( 1893 )

COLEMAN, J.

The plaintiff Schamagel began a suit in assumpsit against W. P. Montgomery by attachment, which was levied upon a quantity of lumber, before a justice of the peace, returnable to his court. Appellee, Whitehurst, interposed a claim to the property, made affidavit, and gave bond, as required by the statute, to try the rights of property. The justice of the peace found the issue for the plaintiff in attachment, and condemned the property to the satisfaction of the judgment, which had been rendered in favor of the plaintiff against Montgomery. The claimant obtained a statutory writ of certiorari, and the case was brought up to the circuit court for trial. The justice of the peace certified up to the circuit court the affidavit and the claim bond made by claimant and the judgment rendered on the claim, condemning the property to the payment of the judgment against the defendant debtor. On the trial in the circuit court the plaintiff introduced in evidence the transcript from the justice court, and evidence tending to show that the property belonged to the defendant debtor, and rested. The claimant introduced no evidence. The court gave the general charge for the claimant. This is assigned as error.

When a case is brought up by appeal on the statutory writ of certiorari from a magistrate’s court to the circuit court, the trial is de novo.

The plaintiff is the actor, and the burden is on him to show that the property is subject to plaintiff’s debt. Until this has been done, the claimant is not required to introduce any evidence. — Treadway v. Treadway, 5,6 Ala. 390; Rhodes v. Smith, 66 Ala. 174; 3 Brickell Dig. 776.

The affidavit made by the claimant states that “the lumber had been levied on by attachment by the constable at the suit of Alexr. Schamagel against W. P. Montgomery,” &c., and the claim bond recites that “whereas a writ of attachment issued out of the court of Thaddeus M. Mills, J. P., returnable to the next term of the court on second Saturday in December, 1890, placed in the hands of the constable, * * * and by him levied upon the following property,” &c.

' Neither the debt due from the defendant nor the judgment against him ordinarily can be enquired into, on the issue to try the rights of property. On such a contest the issue is, whether “the property claimed is the property of the defendant in (execution, or) attachment andliable to its satisfaction.” — Code, §§ 3005,3012, 3366; Boswell v. Carlisle, 55 Ala. 565.

That the property had been levied upon by a constable under attachment process in the suit of the plaintiff against Montgomery was an admitted fact shown by the affidavit and claim bond of claimant. It was, therefore, unnecessary for the plaintiff to introduce evidence of the facts admitted in the pleadings. These admissions did not preclude the claimant, if he could, from showing that the writ of attachment or levy was void upon its face. The law is well settled that if a writ of attachment is issued by a person not authorized to issue it, or is void upon its face, from any cause, the claimant may avail himself of such a defect. — Nordlinger v. Gordon, 72 Ala. 239, Jackson v. Bain, 74 Ala. 328; Taliaferro v. Lane, 23 Ala. 369. But when in the affidavit and claim bond, as in the case at bar, a levy is conceded to have been made by an officer authorized to make the levy under an attachment issued by an officer, this court judicially knows had jurisdiction to issue it, the plaintiff is not bound to introduce additional evidence of these facts.

In the case of Henderson v. Bank of Montgomery, 11 Ala. 855, it was held that “The claimant is estopped by his bond from denying that a levy was made.” The same rule was declared in Mayer v. Clark, 40 Ala. 259 ; Guy v. Lee, 81 Ala. 163 ; and the principle recognized in. Campbell v. May, 31 Ala. 567.

It is further contended by the appellee, that the charge of the court was justified, because of the failure of the plaintiff to show that defendant, Montgomery, owned such an interest in the property as was subject to levy and -sale. On this point the undisputed evidence is, that ■ claimant owned a saw mill, that he and Montgomery bought timber together, that Montgomery was to haul the timber to the mill, and that claimant agreed to saw it into lumber, and then it was to be divided equally between them, that each owned a kiln, and as the lumber was divided, each removed his share to his own individual kiln, that the lumber levied upon had been set apart to Montgomery as his share, and was at his own kiln when levied upon by the attachment. Under this state of facts we do not doubt it was subject to the attachment, and that without regard as to whether this timber had been paid for or not, at the time of the ’ levy.

Reversed and remanded.