Alabama Court of Appeals, 1925

Cornelius Lumber Co. v. Lawhorn-Smith & Co.

Alabama Court of Appeals · Decided June 30, 1925 · Bricken

105 So. 713; 21 Ala. App. 118; 305 So. 713; 1925 Ala. App. LEXIS 260 (Southern Reporter)

Counsel

E. C. Boswell, of Geneva, for appellant. The burden of proof is upon the plaintiff, not only to show that the property claimed is the property of the defendant, but that it is liable to the process and that he was a subsequent creditor. Keyser v. Maas, 111 Ala. 390 , 21 So. 346 ; Warren v. Liddel, 110 Ala. 232 , 20 So. 89 ; McDonald v. Stephens, 204 Ala. 359 , 85 So. 746 ; Gulf Coast Lbr. Co. v. Miles, 206 Ala. 429 , 90 So. 281 ; Hill v. Rentz, 201 Ala. 527 , 78 So. 883 ; Jackson v. Wilson Bros., 201 Ala. 529 , 78 So. 883 ; Code 1907, § 6040. Code 1907, § 3386, applies to subsequent and not existing creditors. Hill v. Rentz, supra. H. G. Tiller, of Geneva, for appellee. In the absence of an exception, the oral charge of the court will not be reviewed. Capital Sec. Co. v. Owen, 196 Ala. 387 , 72 So. 8 ; Mobile L. R. Co. v. Ellis, 209 Ala. 584 , 96 So. 773 . Plaintiff made out its prima facie case when it introduced in evidence its affidavit, attachment writ, and return of sheriff, and proved a debt owing by defendant to plaintiff, and that the property levied upon was in possession and control of defendant at the time of levy. The burden thereupon shifted to claimant to prove that the property attached was its property. Wollner Lowenstein v. Lehman, Durr Co., 85 Ala. 280 , 4 So. 643 ; Bush v. Henry, 85 Ala. 606 , 5 So. 321 ; Jones v. Franklin, 81 Ala. 161 , 1 So. 199 ; Rodenberg v. Claflin Co., 104 Ala. 563 , 16 So. 448 ; Ross v. Lawson, 105 Ala. 533 , 16 So. 915 ; Cochran v. Garrard, 150 Ala. 582 , 43 So. 721 . The burden was on claimant to prove record of its mortgages within three months and notice to plaintiff of its lien. Nolen v. Farrow, 154 Ala. 272 , 45 So. 183 ; Ely v. Pace, 139 Ala. 293 , 35 So. 877 ; Bynum v. Gold, 106 Ala. 427 , 17 So. 667 ; Hodges v. Winston, 94 Ala. 578 , 10 So. 535 ; Code 1923, § 6890. There is no error in refusing charges covered by charges already given. Acts 1915, p. 815; Clinton Min. Co. v. Bradford, 200 Ala. 308 , 76 So. 74 .

Opinion of the Court

*119 BRICKEN, P. J.

This is a trial of the right of property. It was a question' for the jury, under the evidence, whether or not the several mortgages and bills of sale offered in evidence, by the claimant, covered the property seized by'the sheriff under the plaintiff’s attachment.

The evidence shows that all of the lumber was manufactured in the state of Florida, where defendant’s mill was located, and then moved for shipment, into. Geneva county, Ala.; and there was evidence tending to show that some of the lumber had been in this state more than three months when the levy was made. Part of the plaintiff’s claim accrued subsequent to the date of some of the mortgages under which appellant claimed title to the property. The only assignments of error insisted upon by the appellant relate to a portion of the oral charge of the court, and to charges requested by the appellant and refused.

No exception was reserved to the oral charge of the court and the first assignment of error presents nothing for review. Mobile Light & Ry. Co. v. Ellis, 209 Ala. 580, 96 So. 773.

Charge 6 refused to claimant was fully covered by charges 4 and 5 given at claimant's request.

Charges'7, 8, and 9, misplace the burden of proof. The burden was on the plaintiff to show that the property had been in Geneva county three months or more, and then it shifted to the claimant to show the •recording of the mortgage within the time prescribed by the statute.

Charge 10 is unsound. If plaintiff’s claim accrued subsequent to the claimant’s mortgage then he is within the protection of the statute. Hill v. Rentz, 201 Ala. 527, 78 So. 581.

Charges 11, 12, 13, and 14 assert the bringing of mortgaged property into this state, where it is brought for shipment, only, is not within the statute that requires such mortgages to be recorded, although the property remains in this state more than three months. There is no i such exception in the statute, and the proposition asserted is unsound.

We find no error in the record.

Affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.