DocketNumber: 6 Div. 474.
Citation Numbers: 131 So. 902, 222 Ala. 326
Judges: THOMAS, J.
Filed Date: 12/4/1930
Status: Precedential
Modified Date: 1/11/2023
I am not at war with the conclusion that the sheriff's return does not conform to the statute and therefore is not sufficient to support an execution. I had thought, however, that a petition for supersedeas was an independent proceeding — not a step in the detinue suit — and, before the petitioner could prevail, he must sustain the averments of his petition for supersedeas by proof. Ex parte Brickell, Judge,
And, therefore, in the absence of a bill of exceptions showing that the sheriff's return on the replevy bond was before the trial court, the question decided is not presented.
Moreover, so far as appears here, the point was not made in the trial court that the return was not sufficient to support the execution; and I am therefore of opinion that the judgment should be affirmed.
GARDNER, J., concurs in the foregoing dissent.