
    The Southern Cotton Oil Company, a corporation, Appellant, vs. J. F. Bates, Mrs. J. F. Bates, Mrs. J. T. Boyd and J. T. Boyd, Appellees.
    
    141 So. 316.
    Division B.
    Opinion filed May 2, 1932.
    
      A proceeding in contempt.
    
      F. B. Harrell, for Appellant;
    
      O. A. Avriett, for Appellees.
   Pee Cueiam.

This cause coming on to be heard upon the rule for contempt heretofore issued against the appellee, J. E. Bates, for alleged violation of the supersedeas herein by removing from the custody of the sheriff six bales of cotton alleged to have been in his custody and preserved therein by operation of said supersedeas, and the answer of respondent having been filed to the rule unequivocally denying the alleged acts of contempt as having been committed by him, and it being impossible for the Court to ascertain from the record whether the six bales of cotton alleged to have been removed was part of the cotton seized by the sheriff and held under the attachment in aid of foreclosure, it is therefore ordered that the contempt rule be dismissed, without prejudice.

In contempt proceedings involving the removal of property in custodia legis, it is essential that the property shown to have been removed be identified as part of the property in custodia legis before the person removing same can be adjudged in contempt for removing it. It is impossible in the present case to establish such identification from the sheriff’s return or other portions of the record, and no other proof of the facts being available, the rule will be dismissed but without prejudice.

Dismissed without prejudice.

Whitfield, P.J., and T'eeeell and Davis, J.J., concur.

Bufoed, C. J., and Ellis and Brown, J.J., concur in the opinion and judgment.  