Kennon & Hill v. Adams Bros

100 Ala. 288

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

McCLELLAN, J.

On the dismissal of appellant’s claim in the court below at plaintiffs’ motion to which claimants consented, there should have been a formal judgment of dismissal and for the costs of the claim suit. Beyond this it was not necessary for the judgment to go. The execution of bond by claimants and their possession of the property under the bond at the time of the dismissal of their claim, taken in connection with the fact and judgment of dismissal, brought the case within the provisions of section 3008 of the Code as applied to actions of detinue by the Act of February 26, 1889—Acts 1888-9, p. 57, and it thereupon became claimants’ duty to deliver the property to the sheriff within thirty days. If they failed in this, it was the sheriff’s duty to return the bond forfeited; and upon this the clerk, judgment having been entered for the plaintiff in the main suit for the property or its alternate value, and not having-been satisfied, should have issued execution against all the obligors on the bond for the assessed value of the property and for the costs of the claim suit. There was in fact no judgment rendered formally dismissing the claim of Kennon & Hill, the entry reciting only that plaintiffs moved to dismiss the claim and that claimants consented to the motion. The judgment rendered against claimants was that plaintiffs have and recover of them the property sued for or its alternate value as assessed by the jury in the main cause, and the costs of the claim suit. This judgment was irregular. It will be corrected here by an adjudication dismissing the claim of Kennon and Hill and taxing them with the costs thereof, and as corrected it will be affirmed.

Corrected and^affirmed.