McCord v. Hawkins

94 So. 519, 208 Ala. 512, 1922 Ala. LEXIS 310

• Court: Supreme Court of Alabama
• Decided: October 26, 1922
• Docket: 7 Div. 271.
• Status: Published

Opinions

McCLELLAN, J.

This is an appeal (Code, §§ 5739, 5740, 5744) from an order of the cir euit court refusing petition to substitute alleged lost appeal and supersedeas bond averred to have been seasonably accepted by, and filed with, the circuit clerk by Z. D. McCord, petitioner, who was the claimant of certain property subjected to levy of execution under judgment rendered for plaintiffs in the cause of Hawkins and others against Bridges; the forfeiture of petitioner’s claim bond was returned by the sheriff; and the phase ' of the prayer seeking the quashal of the execution is predicated alone of the petitioner’s contention that the bond was, in fact, effective to preclude the rightful return by the sheriff' of the forfeiture of the claim bond; and hence precluded the valid issuance of the execution mentioned.

On hearing of the petition, the evidence being delivered by the witness upon oral examination, the court thus decided the primary issue:

“ * * * The coart is of the opinion that the claimant [the present appellant] is not entitled to have substituted the alleged appeal and supersedeas bond, the court being of the opinion from the evidence, and so finding, that no such appeal and supersedeas bond was ever filed with the clerk of the circuit court in said cause, and that no bond has been lost or destroyed.”

The evidence upon this issue was in conflict. There was evidence designed to invite the conclusion expressed by the court after taking the testimony and with the ad-vantage of the opportunity to observe the witnesses. According appropriate effect to the rule on review in such circumstances, this court cannot affirm error of the view prevailing in the trial court. 13 Mich. Dig. Ala. Rep. p. 167, collating some of the later decisions.

Affirmed.

ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.