Kelley v. Lovett

On Rehearing. It is now brought to our attention for the first time that the judgment in this case is irregular and should be corrected.

It is a claim suit based on an execution. The judgment is against the claimant and dismisses the claim, and adjudges that claimant and the sureties on her appeal bond pay the costs of the claim suit, and that plaintiff have and recover of the claimant and said sureties the property sued for or the alternate value thereof, which is itemized and the value of each item given.

The trial was had first in a justice court resulting in judgment for plaintiff. The claimant had made the usual claim bond and affidavit. Thereupon she sued out a statutory certiorari for the removal of the cause for trial de novo in the circuit court. This was ordered, and she gave another bond conditioned to prosecute the certiorari to effect and pay and satisfy the judgment which might be rendered against her in said court. Section 8778, Code. The judgment in the circuit court against her for the costs was also rendered against the sureties on her appeal bond. This evidently means the certiorari bond, and was justified by section 8789, Code. See, Minchener v. Robinson, 169 Ala. 472, 53 So. 749.

It will be noted that this is not for costs against the sureties on the claim bond which would be improper as pointed out in Petree v. Wilson, 104 Ala. 157, 16 So. 143.

But to the extent that the judgment went to plaintiff for the property sued for or the alternate value thereof, though regular in a detinue suit (section 7392, Code; Minchener v. Robinson, supra), it was irregular in a claim suit growing out of execution, and should be and is hereby corrected. The judgment in addition to the mandate to pay the cost by the claimant and the sureties (naming them) on her certiorari bond should merely subject the property and condemn it (naming each item) to the satisfaction of the execution, and assess the value of each such item. Section 10377, Code; Parker v. Wimberly, 78 Ala. 64; Kennon v. Adams, 100 Ala. 288, 14 So. 15; Ramey v. Peeples Grocery Co., 108 Ala. 476, 18 So. 805; 9 Alabama Digest 610, Execution 201.

The failure to deliver the property pursuant to the requirements of the claim bond, and of section 10378, Code, is taken care of by them, but there is no necessity so to recite in the judgment. The irregularity does not cause a reversal of the judgment but merely calls for a modification of it. Parker v. Wimberly, supra.

The rehearing is granted; the judgment of the circuit court is modified as here indicated, and as modified is affirmed.

Rehearing granted: judgment modified and affirmed.