Ex Parte Landers , 214 Ala. 20 ( 1925 )

The points and facts are set forth in the opinion of the Court of Appeals. Counsel for appellant concede that having purchased the property after the purported levy the return of the sheriff concludes him as to the facts therein set forth, and that he cannot now question the validity of the levy. He insists, however, that the levy was abandoned and the lien lost before he acquired the property, and as this fact is not set forth in the return it can be shown by parol and does not impeach the said return; and we are inclined to agree as to this contention. In fact, there seems to be nothing to the contrary in the opinion of the Court of Appeals. It is urged, however, that the Court of Appeals has, in effect, held that the subsequent rendition of a judgment in the attachment suit and condemnation of the property created a conclusive rather than a rebuttable presumption that the attachment was not abandoned and the lien had not been lost when the claimant bought the property from the defendant, Piper. We are not inclined to the view that the judgment in the attachment suit, rendered after claimant bought the property, was binding or conclusive on him in privity with Piper so as to preclude him from showing that the levy was abandoned and the lien lost, and we also concede that the case of Roman Trustee v. Lentz,177 Ala. 64, 58 So. 438, does not support or bear upon the holding. We do not understand the Court of Appeals as holding, however, that there was a conclusive presumption against the abandonment of the levy, is the opinion says that the facts recited were "presumptive evidence that the levy was not abandoned, and this presumption is sufficient to create in the evidence a conflict, in the face of the parol testimony to the contrary." In other words, the real holding seems to be that it was a question of fact as to whether or not the levy had been abandoned and that the holding of the trial court would not be disturbed. "The law does not favor abandonment or forfeiture of an attachment. On the contrary, the presumption is that the lien continues." 3 Standard of Encyc. of Proc. P. 639, and cases cited. We concede that the facts set forth in the opinion of the Court of Appeals in favor of the abandonment of the lien are strong, and we might, as an original proposition, hold that the attachment was abandoned; but, when the trial court grants a new trial, its conclusion should not be disturbed when it sees and hears the witnesses, unless the great weight of the evidence supported the finding so set aside. That is to say, when the trial court grants a new trial, the same presumption must be indulged in favor of granting the motion that would be indulged had the motion been overruled.

Certiorari denied.

SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.