Mobile Life Insurance v. Teague

78 Ala. 147

• Court: Supreme Court of Alabama
• Decided: December 15, 1884
• Status: Published

Opinion

SOMERVILLE, J.

Where personal property is levied on, by either a writ of attachment or execution, whether issuing from a Circuit Court, a justice’s court, or other court of like jurisdiction, any claimant of such property, who is not a party to the writ, is entitled, under the statute, to become a party to such proceeding, for the purpose of trying the right or title to such property, before there has been a sale of it under the process. Before this can be done, however, he is required to do two things: First, he must make affidavit that he has a just claim to the property levied on; and, secondly, he must execute a forthcoming bond, conditioned and payable in the manner and amount prescribed by the statute. — Code, 1876, §§ 3341-44, 3290-91, 3676. We have held that these requirements are jurisdictional, aud that, in the absence of a claim interposed in substantial accordance with the statute, and conducted in the manner the statute requires, the court has 'no-jurisdiction to try such an issue, and derives none from the mere consent of the parties litigant.— Walker v. Ivey, 74 Ala. 475 ; Graham v. Hughes, 77 Ala.

The record- shows that the issue between the plaintiff and the claimant was tried in the justice’s court, where the cause originated, without the filing ’ of any affidavit, or the making of any bond. Upon appeal to the Circuit Court, an affidavit was filed by the claimant, but no bond was executed. The claimant, by consent of the court, was allowed to withdraw his claim to the property, which, in the meanwhile, seems to have been previously sold by order of the justice’s court, Under this state of facts, the Circuit Court had no jurisdiction to render any judgment, except perhaps for costs, against the claimant, and its action in doing so was erroneous.

Reversed and remanded-