Tobias & Co. v. Treist & Co. , 103 Ala. 664 ( 1893 )

COLEMAN, J.

Treisi; & Co., appellees, sued out an attachment against M. Nathan, for five hundred and ninety dollars, which was levied upon certain goods and merchandise as the property of the defendant. The goods and merchandise levied upon were in three several parts or lots at the time of the levy, claimed, respectively, by Ida Levy, T. Tobias & Co., and A. Kolsky, as vendees of M. Nathan. These vendees executed separate and distinct claim bonds, for the trial of the right of property. By consent of the parties the suits for the trial of the right of property were consolidated and tried together, with the understanding that a separate verdict should be returned as to each claimant, as if tried separately.

The goods and merchandise a few days prior to the levy of the attachment, were in the possession of M. Nathan and were his property. The bonafides of the debt of the attaching creditor, and that it was owing before the sale, were uncontroverted facts. The claimants claimed title by purchase in payment of antecedent indebtedness. Tobias was a brother-in-law and Ida Levy a sister of M. Nathan. The legal principles which apply are well settled.

No exceptions were reserved to the instructions given by the court to the jury, and whether correct or incorrect, these instructions, not being excepted to, are not revisable on appeal. There were some exceptions reserved upon questions of evidence, and also the overruling of a motion for a new trial. The action of the trial court upon these questions furnish the grounds upon which the assignments of errors are based.

One material question at issue was the quantity and value of the goods of M. Nathan on December 26, 1892, the day of the sale. There was evidence showing the value of Ms stock in July, 1892, and also the quantity and value of the goods bought subsequently to that date, and prior to the sale to claimants. There was also evidence tending to show that the proceeds of all the goods sold in the intervening time were regularly deposited in the bank_ at Bessemer. The plaintiffs introduced the cashier as a witness to prove the deposits including the months of July and December. This evidence was properly admitted. It tended, in connection with the other evidence, directly to establish the value and quantity of the goods on hand, when the sale was made to claimants. The assignments of error on this point are not well taken.

The claimants had introduced testimony tending to show that the goods sold were inventoried, and the time within which the inventory could be taken. It was competent for plaintiff to show, if he could, that this testimony was not true. There was no error in admitting the evidence ; neither was there error in permitting plaintiffs to prove the amount of insurance carried by the insolvent debtor upon the goods. All these were facts, to be considered by the jury, in making up their conclusion.

One of the witnesses for plaintiffs, after stating facts to show his competency, testified that Nathan’s stock of goods was worth about $18,000 to $20,000; that he had seen several stocks of goods worth $10,000. That Rosenbaum’s was worth more than $10,000. He was asked “ How much more ?” ■ The plaintiffs objected to the question, “How much more?” We do not see what bearing the question or answer could have on the issue. How far such an examination may be prosecuted is largely in the discretion of the court. — Noblin v. The State, 100 Ala. 13.

There was no error in overruling the motion for a new trial. The transcript is not in good shape as to the motion for a new trial. The grounds of the motion are stated, but it does not appear that any facts were referred to, or offered in evidence, in support of the motion. We have stated that there were no objections or exceptions, reserved to the instructions given by the court to the jury. The omission to reserve an exception at the proper time cannot be cured by a motion for a new trial. We have considered the exceptions which were reserved to the rulings of the court upon questions of evidence, and hold that in this respect the court was free from error.

The judgment of the court, rendei’ed upon the verdict of the jury, was not a proper judgment. On a trial of the right of property, the plaintiff in attachment is not entitled to a personal judgment against the claimant. Where the issue is found for the plaintiff by the jury, the judgment of. the court is one of condemnation of property to the satisfaction of the judgment, if judgment has been recovered against the defendant; and if the suit is still pending, and plaintiff’s claim against the defendant has not been reduced to a judgment, then the court renders judgment that the property levied upon by the attachment is liable to the satisfaction of the plaintiff’s claim, if plaintiff obtain judgment against the defendant.

The record shows affirmatively that the bill of exceptions was not signed in time to constitute a part of the record, but as no objection has been directed to its legality, we have considered it as if regularly signed according to law.

The error of the judgment of the circuit court upon the verdict of the j ury will be corrected here, and as corrected will be affii’med — Myers v. Conway & Co., 90 Ala. 109; Cray v. Raiborn, 53 Ala. 40 ; Packer v. Wimberly, 78 Ala. 64; Kennon & Hill v. Adams Bros., 100 Ala. 288.

Corrected and affirmed.