Worthy v. Guilmartin

SOMERVILLE, J. — The Circuit Court did not err in refusing to grant appellant’s motion asking an order to condemn the lands for the payment of the costs. These costs, it is true, were incurred by the appellee, who was a married woman, in bringing certain suits in the Circuit Court for the recovery of lands which were a part of her statutory separate estate, and under the principle settled in the case [98] of Askew v. Renfroe, decided at the present term, it may be, that -a personal execution, in the usual form, could have been issued against her, and these or other lands, or property, subject to execution, might have been sold under the process, just as if the appellee had been a feme sole. However this may be, a court of law had no power to render a judgment condemning the lands so as to specifically charge them for the payment of the costs. This power exists alone in a court of chancery, and it was on this ground that, in the case of Askew v. Renfroe, above cited, we distinguished the case of Haney v. Lundie, 58 Ala. 100, which is relied on by appellants’ counsel in support of the views urged by him. Judgment affirmed.