
    Petree v. Wilson Bros. & Co.
    
      Statutory Trial of the Right of Property.
    
    1. Execution of a chattel mortgage; how proved. — The execution of a mortgage upon personal property, purporting to be attested by a subscribing witness, cannot be proved by the. mortgagor or mortgagee when the subscribing witness is not called, and no reason for not producing him is shown.
    2. Judgment in statutory claim suit; 'when erroneous as against sureties of claimant. — When in a statutory claim suit to try the right to property, on which an execution has been issued, the issue is found against the claimant, judgment should be rendered declaring the property liable to the satisfaction of the execution, and it is erroneous to render a judgment against the sureties on a claim bond for the costs of the claim suit; the sureties being only liable on said bond upon its forfeiture, by the claimant failing to deliver the property within thirty days after the rendition of judgment.
    3. Same; same; when corrected on appeal. — When in astatutory claim suit the issue is found against the claimant, and judgment is rendered against the claimant and his sureties on the claim bond for the costs of the suit, the error in rendering judgment against the sureties is no ground for a reversal, but is a mere irregularity ; and if the judgment is otherwise correct and proper under the pleadings and facts of the case, this irregularity will be corrected on appeal, by striking out that pai!t of the judgment which gives costs against the sureties.
    Appeal from the Circuit Court of Franklin.
    Tried before the Hon. H. C. Speake.
    Wilson Bros. & Co., at the spring term- of the circuit court of Frankliu county, 1887, recovered a judgment against It. C. Hughes, for the 'sum of $190.84, besides costs. On this judgment, an execution issued on the 10th day of October, 1891, and, coming to the hands of the sheriff, was levied on certain personal property, the subject of this claim suit. On the 29th of February/ 1892, W. it. Petree, the appellant, made an affidavit that the property levied on was his property, and executing a claim bond, as required' by statute, (Code, § 3004),' the sheriff delivered the property levied 'onto the claimant, and filed the papers with the clerk .of .the court, on April 9, 1892. At a subsequent term of the court, an issue was made up under the direction of the court, between the plaintiffs in execution, Wilson Bros. & Co., and the claimant, W. R. Petree, to try the right to this property — the plaintiffs alleging that the property levied on was the property of.the defendant in execution and liable to its satisfaction, on which allegation the claimant took issue.
    On the trial had, the plaintiffs proved that the defendant was in the possession of the property levied on, at ■the date of the levy claiming it as his own. They also' introduced in evidence, the execution, its date and the levy of the sheriff, and the separate values of the different pieces of property levied on. The claimant, as proof of his claim, sought to introduce a mortgage upon the property levied on, which had been given to him by Hughes, the defendant in execution, of date prior to the date of the issuance of said execution, and which had been recorded in the probate office of Franklin county, within the time required by law. The mortgage was signed by said Hughes, by making his mark, and appeared to have been attested by one James Cabiness, who was shown to be living within a few miles of Russellville, the county seat of Franklin county, but who had not been summoned as a witness. The plaintiff objected to the introduction of the mortgage, without proof of its execution by said subscribing witness, which objection the court sustained and claimant excepted. The claimant then offered to prove the execution of said mortgage by the mortgagor, Hughes, and also by himself, the mortgagee, which, on the objection of plaintiff, the court would not allow; and the claimant excepted.
    There was judgment for the plaintiff, the substance of which is seated in the opinion. The claimant appeals, and assigns as error the rulings of the trial court upon the evidence, and the rendition of judgment against the sureties on claimant’s bond.
    J. W. Bolton, for appellant. —
    The mortgage signed by Hughes, who was one'of the defendants in this case, was clearly admissible in evidence without proof of its .execution, unless such execution was denied by sworn plea. — Meyer Bros. v. Mitchell, 75 Ala. 475; Hooper v. Strahan, 71 Ala. 75; Code of 1886, § 2770.
    
      The judgment in this case was erroneous, because rendered on the claimant’s bond against the sureties. — Lang-worthy v. Goodall, 76 Ala. 325.-
    Almon & Buluock, contra. —
    The ■ execution of tbe mortgage can not be proved by the mortgagor or mortgagee when it is attested by a subscribing witness, when such subscribing witness is not called on the trial, and no reason for failing to introduce him is shown. — Askew Bros. v. Steiner, 76 Ala. 218; Russell i>. Walker, 73 Ala. 315 ; 1 Greenl. on Evidence, § 512.
   HARALSON, J.

The evidence introduced by the plaintiffs — their judgment, execution thereon, levy on the property claimed, the claim bond oí the claimant, the possession of the property at the time by defendant in execution claiming it as his, and the value of each separate article levied on — entitled the plaintiffs to a verdict and judgment on the issue joined, unless the claimant proved-a superior right and title.

To do this, he sought to introduce a mortgage on the property levied on, executed by defendant in execution to him, older than plaintiffs’ execution, under which they claimed the right to the property. But the claimant did not prove the execution of his mortgage by the subscribing witness, shown to be living near at hand, and who had not been subpoenaed. No rule is better settled, tha,n that when one claims personal property under a mortgage, which is attested by a subscribing witness, its execution must be proved by him, or a proper predicate must be laid for the introduction of secondary evidence ; and the admissions or declarations of the parties themselves to the instrument (not made in open court, or in writing for the purposes of a trial when they are parties litigant) are not admissible for this purpose. — Askew v. Steiner, 76 Ala. 218 ; Richmond & D. R. R. Co. v. Jones, 92 Ala. 226. And, its execution can not be proved by the mortgagor or mortgagee, when the subscribing witnesses are not called, and no reason for failing to produce them is shown. — Russell v. Walker, 73 Ala. 315.

There were other questions reserved as to the introduction of the record of the judgment in the probate court, but they are not important to be considered.

The judgment of the court was, that certain property which had been levied on and claimed, but found by the jury to belong to the defendant in execution, be condemned to the satisfaction of plaintiffs’ debt. The court went further, and entered judgment againt the claimant and the sureties on his claini bond, for the costs of the claim suit. It is only by virtue of the statute that execution can issue against the sureties, for they are not parties to the judgment. If judgment is rendered against the claimant, as was done here, and he fails to deliver the property within thirty days thereafter, to satisfy the plaintiffs’ execution, the sheriff must endorse the bond forfeited; and thereupon, the clerk must issue execution as directed by section 3008 of the Code, for the “plaintiffs’judgment * * * and also for the damages, if any were assessed, and the costs of the trial of the right of property.” — Langworthy v. Goodall, 76 Ala. 325; Catching v. Bowden, 89 Ala. 605.

But, this was a mere irregularity, which will be corrected here, by striking out that part of the judgment which gave costs against the sureties, and as thus corrected, it will be affirmed. — Kennon v. Adams, 100 Ala. 288.

Corrected and affirmed.  