Williams v. Houser

[21] Judgment affirmed. The verdict was in favor of the affidavit of illegality interposed by the plaintiff. The assignments of error are upon the instruction of the court, that if the plaintiff’ foreclosed a mortgage and execution issued upon the foreclosure was by the sheriff levied upon the property therein described, to which levy a claim was interposed, and the claimant replevied the property by giving a forthcoming bond, and afterwards withdrew the claim, the shei'iff’ would have no right to demand and take possession of the property upon her filing a second claim and failing to give a new forthcoming bond; and that if under these circumstances he did take possession of the property, he could not charge the plaintiff with the expense of keeping it. And upon the refusal to charge as requested: “If you believe from the testimony that the claimant withdrew her claim to the property, and after doing so, surrendered and delivered the property to the sheriff, and the plaintiff knew that the sheriff had the property in his possession and permitted the expense of keeping the stock to accrue, then the cost taxed for keeping'them would be proper and tbe plaintiff would be entitled to have tbe expense of keeping them, and you would find the issue.in favor of the plaintiff.” ~W. S. Wallace, O.' M. Colbert and Thornton & MoMiciiael, for plaintiff in error. M. G-. Bayne, contra.