[Hardy & Co. v. Ingram | Should this order be complied with, it is manifest that appeal and reversal after final trial and judgment, would give little promise of a recovery of the money, and the probable result would be that the plaintiff, though having a lien, would lose all means for its enforcement. Appeal is not an adequate remedy. We consider this a clear case for mandamus. Ex parte Haralson, 75 Ala. 543. Before the attachment was levied or issued in this case, Lazarus, the defendant, had made his selections and asserted his claim of exemptions, and had filed the same with the judge of probate for record.--Code of 1886, § 2515. No steps for contesting the claim had been taken by the plaintiff before suing out the attachment.-§ 2520. On this account, it is urged that the levy of the attachment is invalid, and should be set aside. And, for the same reason, it is urged that the plaintiff is in no condition to claim the relief he here seeks. We have shown above that the attachment in this case shows on its face, that it was for the collection of rent for the store-house, in which the goods were found when they ere levied on. This informed the sheriff that the claim of exemptions was groundless, and authorized him to disregard it, even if it had been brought specially to his notice, which it was not. McLaren v. Anderson, 81 Ala. 106. It is ordered and adjudged that the writ of mandamus issue to the judge presiding in Lee Circuit Court, commanding and requiring him to vacate the order made April 23, 1887, by which the sheriff was "ordered and required to pay over said sum of nine hundred and sixty-four dollars to the said E. W. Lazarus or his attorney of record," Mandamus granted. Hardy & Co. v. İngram. Trial of Right of Property. 1. Special finding of facts by court; revision on appeal.--On the trial of a statutory claim suit, the facts being admitted, and the court thereupon finding, specially, that the property belongs to the claimant, the duty is devolved on this court, on appeal (Code, §§ 2743-45), to determine whether the facts are sufficient to support the judgment. 2. Retroactive statutes.--The statute approved February 28th, 1887, [Hardy & Co. v. Ingram.] which allows the holder of a lien or equitable title to maintain a statutory claim suit (Code, § 3004), does not apply to suits which were pending at the time of its passage. 3. Landlord's lien, and right to maintain claim suit.―The landlord's statutory lien for rent and advances does not confer on him a right of property sufficient to support trespass, trover, or detinue; and he could not, prior to the passage of said act of February 28th, 1887, maintain a statutory claim suit. APPEAL from Clay Circuit Court. Tried before Hon. JOHN B. TALLY. Hardy & Co., appellants, plaintiffs below, obtained judgment against one Nolen, and execution thereon issued and was levied on certain cotton and corn in possession of said Nolen. Ingram, appellee, appeared as claimant of the property under the statute. The issue was found in favor of claimant and Hardy & Co. appealed. PEARCE & KELLY, for appellant.-Section 3004 of the Code of 1886 is not retroactive.-83 Ala. 440; Ib. 408; Ib. 299. LACKEY & HOOD, and SMITH & SMITH, contra.-The statute is remedial and should be construed in favor of claimant. Ex parte Buckley, 53 Ala. 42. CLOPTON, J.-The statute authorizes parties to a civil action to agree in writing that an issue of fact may be tried and determined by the court without the intervention of a jury, and the finding may be general or special, unless one of the parties requests a special finding. On the trial, either party may reserve, by bill of exceptions, any ruling, opinion or decision of the court, to which an exception could have been reserved, if a trial by jury had not been waived, and is entitled to an appeal from the judgment of the court; and, "if the finding is special, on appeal, the Supreme Court must examine and determine whether the facts are sufficient to sustain the judgment."--Code, 1886, §§ 2743-2745. This proceeding was a statutory trial of the right of property. The sole question was, whether, on the facts which were admitted, the property levied on was liable to the execution, or was the property of the claimant. On the admitted facts, the court found specially, that the property was not the property of the defendant in execution, and was the property of the claimant. We regard this a special finding in the meaning of the statute, and the appeal devolves on us the duty of examining [Grayson, Adm'r, v. Latham et al.] and determining whether the facts are sufficient to support the judgment. The levy was made and the claim interposed prior to the enactment of the statute of February 28, 1887, which constitutes section 3004 of Code of 1886, which provides: That the right of trial to property provided by the statute shall include any person who holds a lien upon, or equitable title to such property. We have heretofore held that the act is not retrospective, and that a claimant must maintain his claim on the title he had, when it was interposed, and that the rights of the parties must be determined by the law then in force.—Wetzler v. Kelly, 83 Ala. 440. By the law in force at the time the proceeding was instituted, the claimant must show a legal title to the property with actual possession, or a right to possession, such as would maintain trespass, trover or detinue. At the time of the levy the property was in the possession of the defendant in execution. The only claim or right to the property of the claimant as shown by the admitted facts is a landlord's lien for rent and advances. Such lien does not confer on the landlord a right of property sufficient, prior to the adoption of section 3004, to support a claim under the statute.-Treadway v. Treadway, 56 Ala. 390. The facts do not support the judgment of the court. The parties agreed that if the judgment was reversed, this court should render the proper judgment. This we can not do, as there is no proof, from which we can ascertain and assess the value of each article of the property separately, as required by the statute. Reversed and remanded. 84 546 98 538 84 546 115 538 Grayson, Adm'r, v. Latham et al. Suit on County Warrants by Motion against County 1. County warrants; burden of proof.--County warrants, purporting to be issued by order of the county commissioners, and signed by the judge of probate officially, prima facie import a liability on the county; and in an action on them, against the county treasurer and his sureties, the onus is on them to show that the warrants were issued without authority, or that they are without legal consideration. 2. Same; consideration.--If the warrants were issued in recognition [Grayson, Adm'r, v. Latham et al.] of a debt contracted by the county during the late war, in the purchase of corn for the maintenance of the families of Confederate soldiers, they would be without legal consideration, and no recovery could be had on them; but, if the corn was purchased for the support of the indigent, and not in promotion of the Confederate Government, the consideration would be lawful, and the warrants valid; and though the original agreement for the purchase of the corn was unlawful, a new contract, made after the close of the war, by which the county acquired the balance of corn remaining on hand, at a new price, and for a lawful purpose, would not be affected with the taint of illegality. 3. Same; order for issue or allowance of.--If the claims were audited and allowed by the county commissioners, it would not avail the defendants to show that there was no prior order of the court for the purchase of the corn. 4. Same; statute of limitations against.--County warrants, issued by authority, duly audited and registered, are not due and demandable until regularly reached in the order of their registration; and the statute of limitations, which is six years, does not begin to run against them until that time. 5. Secondary evidence.--The court-house and records of the court of county commissioners having been destroyed by fire, it is competent to show by oral proof that no order had ever been made by such court authorizing the issue of county warrants upon which suit had been brought. APPEAL from Pickens Circuit Court. Tried before Hon. S. H. SPROTT. The suit is founded on two county warrants alleged and purporting to be issued by the commissioners court of Pickens county, and signed by the probate judge, one for $2,878 to C. W. Moore, administrator of William Robinson, on the 1st day of February, 1866, and the other for $1,188 to D. P. Davis, or order, on the 28th day of February, 1867. These claims were registered with the county treasurer on April 5th, 1870, numbered 146 and 147, and these numbers were passed on the register of claims by the treasurer without payment in July, 1876, and since passing said claims the treasurer of the county paid out more money than was sufficient to pay the two warrants. Demand for payment was made on the county treasurer in December, 1881. This suit was instituted January 24th, 1882, by motion against appellees, H. B. Latham, the county treasurer, and his sureties on his official bond, on his refusal pay the warrants sued on. to The defense in the case and the various questions of evidence appear in the opinion. The charges therein referred to are here given: "3. The plaintiff in this case can not recover unless he shows that the warrants upon which this suit is founded are valid warrants; and to constitute valid warrants, they must [Grayson, Adm'r, v. Latham et al.j have been drawn by the judge of probate of the county in pursuance of an order of the court of county commissioners, allowing claims against the county with which the county was legally chargeable; and if the jury shall believe from the evidence that the judge of probate of Pickens county, Alabama, drew the warrants sued on in this cause without the authority of the court of county commissioners of said county, then the plaintiff can not recover in this action, and the jury must find for the defendants." "5. On the county warrants sued on in this case, the statute of limitations began to run from the time payment of said warrants was denied by the commissioners court of Pickens county, or by the treasurer of said county, or by both." "6. When a right exists, but a demand is necessary to entitle the party to an action against any officer, agent or attorney, the limitation commences from the commission or omission of the act giving the right of action, and not to the date of the demand.-Code, §§ 2915; 3241." A motion was made in this court to strike the bill of exceptions from the transcript. E. D. WILLETT & E. D. WILLETT, JR., CALDWELL & JOHNSTON, and BRICKELL, SEMPLE & GUNTER, for appellant.―The commissioners court has power to make contracts and issue warrants.-66 Ala. 382. The county treasurer is required to pay warrants in order of registration, and proof of payment of junior claim is sufficient to authorize suit.-Code, § 845; 54 Ala. 64; 51 Ala. 105; 65 Ala. 461. The allowance and issuance of warrants make them prima facie correct, and the burden of impeaching them is on defendant.-53 Ala. 25; 57 Ala. 209; 61 Ala. 295; 1 Brick. Dig. 344, § 133. As to the statute of limitations, see 57 Ala. 209; Code, §§ 845, 3241, 3226, subd. 7, 3223, subd. 3. Questions of evidence and the various charges argued at length. M. L. STANSEL, L. M. STONE, and TROY, TOMPKINS & LONDON, contra.—The bill of exceptions should be stricken from the transcript.-69 Ala. 104; 82 Ala. 429. The action was not brought until the witnesses were nearly all dead.---72 Ala. 24. The record was insufficient to support issuance of warrants.--57 Ala. 215, 221; 66 Ala. 137. Warrants are barred by the statute of limitations.-7 Ala. 880; Code of 1876, SS 3225, 3241. |