Wood Mercantile Co. v. McAdoo

Supreme Court of Alabama

Wood Mercantile Co. v. McAdoo

49 So. 856, 161 Ala. 571, 1909 Ala. LEXIS 164

DecidedMay 24, 1909

StatusPublished

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Bluebook

Wood Mercantile Co. v. McAdoo, 49 So. 856, 161 Ala. 571, 1909 Ala. LEXIS 164 (Ala. 1909).

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Opinion

SAYRE, J.

From the much involved transcript of the record in this case we gather the pertinent facts to be as follows: The appellant brought suit before a justice of the peace against the Louisville & Nashville Railroad Company to recover a certain sum of money alleged to be due from the defendant to one Elmore Austin; plaintiff claiming the same by assignment. The defendant suggested, under the statute, Susie McAdoo, the appellee, as claimant, whereupon she came in and defended. Judgment went for the substitutionary defendant on December 18, 1907. The sum in controversy was then paid into court by the railroad company, and by the court paid over to the appellee. More than 6 months later, but within 12 months from the date of the judgment, appellant sued out- a statutory writ of certiorari, returnable into the city court of Bessemer. In the city court a motion was made to quash the certiorari, on the grounds that it has not been sued out within 6 months after the rendition of the judgment in the justice’s court and that the judgment in the justice’s court had been satisfied prior to- the sueing out of the writ. On this motion the evidence, all of which is set out in the bill of exceptions; was taken, and showed without conflict that the money had been paid to the appellee as detailed above.

We presume the court below proceeded upon the idea that the writ of certiorari'had not been sued out within the period prescribed by the statute. -But that such [573]*573was not the case has since been determined by this court in the case of Theo. Poull & Co. v. Foy-Hays Construction Co., 159 Ala. 542, 48 So. 785. As for the other ground of the motion, it is too clear for argument that the payment of the sum of money in controversy to the appellee had no effect whatever upon the rights of the appellant in the premises, and did not operate as a. waiver by it of its appeal. The judgment quashing the certiorari was error.

Reversed and remanded.

Dowdblb, C, J., and Anderson and McClellan, JJ-, concur.

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SAYRE, J.

From the much involved transcript of the record in this case we gather the pertinent facts to be as follows: The appellant brought suit before a justice of the peace against the Louisville & Nashville Railroad Company to recover a certain sum of money alleged to be due from the defendant to one Elmore Austin; plaintiff claiming the same by assignment. The defendant suggested, under the statute, Susie McAdoo, the appellee, as claimant, whereupon she came in and defended. Judgment went for the substitutionary defendant on December 18, 1907. The sum in controversy was then paid into court by the railroad company, and by the court paid over to the appellee. More than 6 months later, but within 12 months from the date of the judgment, appellant sued out- a statutory writ of certiorari, returnable into the city court of Bessemer. In the city court a motion was made to quash the certiorari, on the grounds that it has not been sued out within 6 months after the rendition of the judgment in the justice’s court and that the judgment in the justice’s court had been satisfied prior to- the sueing out of the writ. On this motion the evidence, all of which is set out in the bill of exceptions; was taken, and showed without conflict that the money had been paid to the appellee as detailed above.

We presume the court below proceeded upon the idea that the writ of certiorari'had not been sued out within the period prescribed by the statute. -But that such [573]*573was not the case has since been determined by this court in the case of Theo. Poull & Co. v. Foy-Hays Construction Co., 159 Ala. 542, 48 So. 785. As for the other ground of the motion, it is too clear for argument that the payment of the sum of money in controversy to the appellee had no effect whatever upon the rights of the appellant in the premises, and did not operate as a. waiver by it of its appeal. The judgment quashing the certiorari was error.

Reversed and remanded.

Dowdblb, C, J., and Anderson and McClellan, JJ-, concur.

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49 So. 856, 161 Ala. 571, 1909 Ala. LEXIS 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-mercantile-co-v-mcadoo-ala-1909.

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