Bradford & Sons v. Bassett , 151 Ala. 520 ( 1906 )

DENSON, J.

It is a principle of law well settled by the decisions of this court that a claimant in a claim suit may show that the attachment, execution, or other process is void on its face. — Schamagel v. Whitehurst, 103 Ala. 260, 15 South. 611, and authorities there cited. It is equally as well settled that when a party makes affidavit and gives bond as required by the statute (section 4141 of the Code of 1896), if the process is not void on its face, the party by his claim bond is estopped from inquiring into the validity of the levy. It is true that in the case above cited this language is used: “These admissions (in the claim bond) did not preclude the claimant, if he could, from showing that the writ of attachment or levy Avas Aoid on its face.” The latter alternative of the sentence quoted has been seiaed upon by the appellee (claimant) as authority for the proposition that, notwithstanding the execution of the claim bond reciting the levy of the execution in the case at bar, Avhich is a valid execution, the claimant may show that the levy was void.

The facts of that case did not call for the enunciation of the proposition contended for by appellee, and which the circuit court adopted in its ruling. Nor Avas it intended to be so held. We make this latter statement because in a subsequent case, in which the facts were that an attachment Avas sued out before a justice of the peace and levied by an officer Avithout authority to make the levy, and a claim affidavit and bond were made, the justice granted a motion made by the claimant to discharge the levy. On appeal to the city court the motion ' to discharge the levy was renewed, and was there overruled. This court disposed of the question in.this language : “Whether the levy of the attachment was valid or not is immaterial. The execution of the claim bond estopped appellant (claimant) from denying the levy.” — Sloan v. Hudson, 119 Ala. 31, 24 South. 459. The court there cited as authority the case relied upon by appellee here. To the same effect are the following cases: Schloss v. Inman, Smith & Co., 129 Ala. 430, 30 South. 667; Eldridge v. Grice, 132 Ala. 667, 32 South. 683; Henderson v. Bank of Montgomery, 11 Ala. 855. It follows that the objection to the execution Avas improperly sustained by the court.

The only issue in the case for the jury to try was whether the property claimed was the property of the defendant in the execution and Avas liable to its satisfaction.^ — Code, 1896, § 4142; Schloss v. Inman, Smith & Co., 129 Ala. 430, 30 South. 667. The judgment of the circuit court must be reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Haralson and Simpson, JJ., concur.