Gillespie v. Bickley

53 So. 108, 168 Ala. 219, 1910 Ala. LEXIS 539

• Court: Supreme Court of Alabama
• Decided: April 7, 1910
• Status: Published

Opinions

ANDERSON, J.

It has long been the settled practice in this state for the circuit court to settle claims to funds in the hands of the sheriff and to proceed in such cases in a summary and informal manner. This may be done upon the application of the sheriff, who states the facts to the court, whereupon notice is given to the parties in interest, and they axe permitted to come in and propound their claims. The court will then declare the lights of the parties and direct its officers to proceed accordingly.—Garrison v. Webb, 107 Ala. 504, 18 South. 297; Chandler v. Vandegrift, 94 Ala. 236, 10 South. 353; Gusdorf v. Ikleheimer, 75 Ala. 158; Turner v. Lawrence, 11 Ala. 429; Henderson v. Richardson, 5 Ala. 349. This course can only be pursued, however, to protect the sheriff against conflicting claims of suitors.—Turner v. Lawrence, supra. The power should be exercised only when necessary to determine between rival claimants the priorities of legal liens, derived from legal process.—Gusdorf v. Ikelheimer, supra.

It has never been the purpose or policy of the law to require parties claiming a fund under process, and which said process put the fund in the hands of the sheriff, to have to litigate in such a proceeding with a party who is not claiming the fund under process issued from the same court. It would be an anomally to compel claimants under process to litigate in this manner with persons not claiming under'legal process, and who merely inform the'sheriff that they claim the fund in hand. If they have a prior claim to the thing sold, the statute gives them the right to interpose a claim to try the right of property, or they might sue the sheriff for taking or converting same; but the remedy under discussion was never intended to compel parties claiming liens under process to litigate with a party who was not a rival suitor and who was not claiming under process. It is true the books, in discussing this question, indiscriminately use the words “all claimants of the funds”; but a close analysis of the cases will demonstrate that claimants referred to meant only those who were suitors or claimed under process. It should also be noted that in every reported case the contesting claimants were claiming under process. We may concede that the appearance of the appellant made him a party to the judgment, and that he has the right to appeal ; but when he propounded his claim, which was not founded upon process, but upon a mortgage, the trial court did not err in striking said claim.

The judgment of the circuit court is affirmed.

Affirmed.

Dqwdell, O. J., and Mayfield and Sayre, JJ., concur.