Friel v. North Birmingham Building Ass'n

61 So. 552, 6 Ala. App. 223, 1912 Ala. App. LEXIS 61

• Court: Alabama Court of Appeals
• Decided: November 14, 1912
• Status: Published

Opinion

PELHAM, J.

The appellee, as plaintiff, instituted attachment proceedings in the inferior court of Birmingham against J. M. Woody and Mattie Woody to enforce a landlord’s lien for the rent of a dwelling house. After levy of the attachment, the defendants in that suit made a forthcoming bond with the appellants T. H. Friel and P. L. Hagler as sureties. The plaintiff prosecuted the attachment suit to judgment in the inferior court, and an appeal was taken. The property was not forthcoming at the proper time, and the bond was forfeited. Whereupon the appellants filed a motion in the inferior court to stay the execution. The motion was heard and dismissed, and the appellants appealed from the judgment dismissing the motion to the circuit court where it was heard and overruled, this appeal being from the judgment of the circuit court overruling the motion.

The appellants insist that, because the name as set out in one place in the bond appears as “Moody” in place of “Woody,” the bond is not a statutory bond. The contention is without merit. The suit was against “Woody,” the attachment writ was issued against “Woody,” the replevin bond is signed “Woody,” the name is set out as “Woody” in the obligation or bond proper, and in only one place in the “whereas” or condition of the bond does the name appear as “Moody,” where the reference is made to an attachment having-been sued out against the estate of “the above-named Moody.” The above-named appears as “Woody” and not “Moody,” and a reference to the attachment shows it to have been sued out against Woody. The use of the name “Moody” where it appears in the condition of the bond is shown on the face of the paper to be a purely clerical error that does not affect the instrument as a statutory bond.

The judgment rendered in the inferior court seems to be regular, and the bond forfeited in strict conformity to the requirements of the statute. — Code, § 4693. No motion is required as a prerequisite to forfeiting the bond under the provision of section 4693 of the Code, as is necessary in a case where the proceeding is to secure judgment under the provisions of section 3961 of the Code against a surety, and the case cited by appellant [Dow Wire Works Co. v. Engelhardt, 136 Ala. 608, 33 South. 817) for that reason is not applicable.

The action of the court in refusing to allow appellants to introduce the affidavit or claim of Vivian Eaver, unaccompanied by a bond, and upon which no trial of the right of property urns had, was without error. The “list of goods” stated in the bill of exception^ to have been found in the file is not set out, and we have no data upon which to pass upon the court’s ruling in refusing to admit it on the hearing of the motion.

The assignments of error do not present anything authorizing a reversal of the case.

Affirmed.