Bowman v. Poohl

168 So. 2d 225, 277 Ala. 193, 1964 Ala. LEXIS 494

• Court: Supreme Court of Alabama
• Decided: October 22, 1964
• Docket: 2 Div. 440
• Status: Published

Opinions

PER CURIAM.

Appellants, W. I. Bowman, doing business as Demopolis Stock Yards, and Pete Reynolds initiated attachment proceedings in the Circuit Court of Marengo County against Orval Quick.

An attachment writ, issued on the ground that defendant was a non-resident, was levied by the Sheriff of Marengo County on 101 head of cattle as the property of the defendant. One Jasper Poohl, of Hamilton, Michigan, filed a petition for permission to intervene as the owner of the cattle.

Contemporaneously with the filing of this petition, Mr. Poohl moved the court “to require the plaintiffs to show cause why the attachment heretofore executed against certain property in this cause, to-wit: [describing the attached property] ; should not be dissolved and declared to be of no force and effect; * * Suffice it to say that Ground 1 of the motion alleged that the in-tervenor was the true owner of the cattle and that defendant had no property rights in and to the same. Two other grounds were merely restatements of ownership. Ground 4 charged that the attachment was issued on Sunday, and that plaintiffs failed to make an affidavit and give bond as provided in such cases, and the attachment was thereby wrongful.

The trial court, after hearing the evidence for and against said motion, allowed the intervention and then made a finding of fact that title to said cattle, at the time the truck hauling the cattle was stopped, and at the time the writ of attachment was levied, was in the intervenor, Poohl. The court entered a judgment dissolving the attachment and thereafter, within the time and manner provided by law, overruled a motion for a new trial which was seasonably filed and presented by plaintiffs.

Appellee filed in this court his motion to strike the record and to dismiss plaintiffs’ appeal. The grounds of the motion sufficiently argued, and which we will consider, are as follows:

(1) That the complaint was not filed within fifteen days after the attachment ip. said cause was sued out.

(4) That the record shows on its face that this appeal is taken from an order dissolving an ancillary attachment, which is not an appealable order, and there is no final judgment in the cause to support an appeal.

On the Motion

The record before us, by which we must be guided, shows an attachment affidavit was filed with the Circuit Clerk of Marengo County on September 15, 1962; on the same date the Clerk issued a writ of attachment. Thereafter, on September 28, 1962, within fifteen days from the date the attachment was issued, plaintiffs filed a complaint against the defendant. Written on the bottom of the complaint, below the filing inscription made by the Clerk, was the following : “Holding for address of def. Instructions of plaintiff.” It also appears that the Clerk on September 28, 1962, issued a summons to the defendant to appear and answer the complaint. This summons does not have any return of the Sheriff showing service, nor was notice by publication given to defendant. He made no appearance.

Therefore, in our opinion, Ground 1 of the motion is without merit. The complaint was filed within the time prescribed by law. Section 882, Title 7, Code 1940. The alleged direction by the plaintiffs to hold for the address of defendant did not toll or nullify the filing.

It appears from the record that the plaintiffs and the intervenor went to trial on the motion to dissolve the attachment. The plaintiffs did not challenge the legality of the motion or any of the grounds therein stated, nor did they seek a continuance, or offer any objections to entering upon a trial of the motion, which was heard within two days after petition for intervention and the motion were filed. We pretermit any observations as to the legal efficacy or vulnerability of the motion for dissolution or the grounds supporting the same. We also pre-termit discussion as to the pertinency of our holding in Exchange Nat. Bank of Spokane v. Clement, 109 Ala. 270, 19 So. 814(1), and cases cited.

Since the intervenor elected to present the ultimate and final issue of ownership of the cattle by motion to dissolve, the plaintiffs having appeared and attempted to show cause why the attachment should not be dissolved by offering evidence that title to the cattle was in defendant Quick, and appellee having offered evidence that the cattle were his, we do not think appellee can now be heard to say that the judgment of the court dissolving the attachment, accompanied by a finding of fact that intervenor was the owner of the cattle, was not a final judgment as to the issue between him and plaintiffs. The ultimate issue of title between the plaintiffs and Poohl, a claimant, was tried and determined. An appeal lies. Monroe County Growers Exchange v. Harper, 20 Ala.App. 532, 103 So. 600(4).

Appellee’s motion to strike the transcript and to dismiss the appeal is denied.