Burdine v. Roper
Supreme Court of Alabama
Error to the Circuit Court of Pickens. Assumpsit, by the defendant against the plaintiff in error. From a bill of exceptions, it appears, that a firm styled Davis & Humphreys, of which one Joseph Martin was a partner, recovered a judgment against the administratrix of David Archer. Martin died, and the plaintiff in error became his administrator, and in -that capacity had control of the above recited judgment.
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Error to the Circuit Court of Pickens. Assumpsit, by the defendant against the plaintiff in error. From a bill of exceptions, it appears, that a firm styled Davis & Humphreys, of which one Joseph Martin was a partner, recovered a judgment against the administratrix of David Archer. Martin died, and the plaintiff in error became his administrator, and in -that capacity had control of the above recited judgment. An execution issued on the judgment, and was levied on a slave in the possession of one Wier, who interposed a claim under the statute, and upon the trial the slave was found subject to…
1Opinion of the CourtOrmond, J.
— The general principle is not denied, that an action of indebitatus assumpsit will lie, to recover back money paid upon an execution, issued on a judgment which has been reversed; but it is argued, first, that the rule does not apply to such a case as the present, where the judgment remains in full force, and the execution is not vacated.
The judgment in virtue of which the slave was sold, was rendered upon the proceeding, under our statute, for the trial of the right of property, a proceeding which is collateral to the judgment on which the execution issued, and is in itself a suit,…
2Cited by14 opinions
- Esslinger v. SpraginsSupreme Court of Alabama · 1938
- Hunnicutt v. HigginbothamSupreme Court of Alabama · 1903
- Campbell v. American Bonding Co.Supreme Court of Alabama · 1911
- Manegold v. BeavanSupreme Court of Alabama · 1914
- Daily's Adm'r v. DailySupreme Court of Alabama · 1880
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