R. A. Myles & Co. v. A. D. Davis Packing Co.

81 So. 863, 17 Ala. App. 85, 1919 Ala. App. LEXIS 111

• Court: Alabama Court of Appeals
• Decided: April 8, 1919
• Docket: 1 Div. 252.
• Status: Published

Opinions

BRICKEN, J.

The appellants, R. A. Myles, Mrs. R. A. Myles, and Erwin S. Myles, conducted a meat market under' the style of “R. A. Myles & Co.” A judgment was recovered, in the law and equity court of Mobile county by the A. D. Davis Packing Company against R. A. Myles individually. An execution was issued' upon this judgment and placed in the hands of the sheriff of Mobile county. The sheriff levied upon ten cows as the property of the defendant in execution, took possession of the same, and sold them in satisfaction of the execution. Prior to the sale of this property, the sheriff received an indemnifying bond, executed by the A. D. Davis Packing Company as principal and the Fidelity & Deposit Company of Maryland as surety.

The defendants in this suit were the principal and surety in the indemnifying bond. The complaint contained six counts. Each count is based upon the theory that the property levied upon was partnership property, and that the action of the sheriff in levying upon, taking possession of, and selling such property for the satisfaction of the individual debt of one of the partners was wrongful. Demurrers were interposed to the complaint, were sustained by -the court, and appellants took a nonsuit.

The main and determining question raised by this record is whether the levy upon and sale of this .property by the sheriff was wrongful. Each member of a copartnership is the owner of an undivided interest in the chattels and goods of such partnership. This interest under the decision in this state, is subject to seizure and sale under an execution in the hands of a sheriff upon a judgment rendered against one of the individual members of the partnership. Moore v. Semple, 3 Ala. 319; Andrews v. Keith, 34 Ala, 722; Daniel v. Owens, 70 Ala. 297.

The contention of appellants that this rule is to be applied only when all of the tangible property' of a partnership has been levied upon to satisfy á judgment against one of the members of the firm is, in our opinion, without merit, and is opposed to the authorities above cited. Section 4106 of the Code of 1907 in no way changes this rule of law, and does nothing more than clothe the sheriff with the right of taking or not taking actual possession of the property levied upon, as he may see fit.

The extent of the interest acquired by a purchaser under a sheriff’s sale under the circumstances and facts set out in this record is a matter with which we are not here concerned. Daniel v. Owens, supra; Tait v. Murphy, 80 Ala. 440, 2 South. 317.

The action of the court in sustaining appellee’s demurrer was without error.

Affirmed.