Schloss v. Inman, Smith & Co.

tí H Alt PE, J. Upon the former appeal in this case it was held in effect that the evidence showed without conflict that the levy of the plaintiffs’ attachment was prior to the delivery of the deed of assignment to the claimant. This fact, without reference to the time when the deed was filed for record, appeals to have furnished the controlling reason for the conclusion then reached that the jury should have been charged affirmatively in favor of the plaintiffs according to their request. Since that decision, section 1004 of the Code has been a subject of consideration in this court in two other cases, wherein it was construed as requiring deed® of assignment to be delivered to the probate judge for record in order to become operative.—Rogers v. Bailey, 121 Ala. 314; [430] Reeves v. Estes, 124 Ala. 303. If there be airy material difference between the evidence adduced on tlie former trial and that appearing in this record touching the time of levy with reference to delivery of the deed to the claimant, still there remains and appears in the claimant’s evidence the undisputed facts, that Oppenheimer, the defendant in attachment, owned the goods when levied on unless he had been previously divested of ownership, by the deed. As shown by the sheriff’s return as well as by other uncontradicted evidence, the levy occurred on December 28th, 1896, which was the day before the deed was delivered to the probate judge and, therefore, the deed became operative. The existence of the plaintiff’s debt as well as the fact the attachment was levied, the claimant, by assuming the position of claimant in the attachment suit, is held in legal effect to admit.—Schamagel v. Whitehurst, 103 Ala. 260; Sloan v. Hudson, 119 Ala. 27. The only issue for the jury to try was whether the property claimed was the property of the defendant in the writ and was liable to its satisfaction. — Code, § 4142; Schamagel v. Whitehurst, supra. Upon this issue the plaintiffs were for the reasons stated entitled to have the jury instructed affirmatively in their favor according to the charge requested by them in writing. The court in response to a statement by the jury that they did not understand the charge, said’: “I charge you whether you believe the evidence for the plaintiffs or the claimant you must find for the plaintiffs.” This was a charge upon the effect of evidence, and being given e.m mero mota, was improperly given in view of 'section 3326 of the Code, which provides that the court “shall not charge upon the effect of the testimony, unless required to do so by one of the parties.” But the facts entitling the plaintiffs were respectively established either by record evidence or were admitted so as not to depend on the credibility of oral testimony, and "were such as made a verdict for the plaintiffs the only one which properly could have been found. Such being the case it is legally impossible that the jury in finding for the plaintiffs were improperly influenced by the oral charge and, therefore, it furnishes no ground for reversal. [431] Tlie plaintiff’s purpose in introducing in evidence the inventory of goods levied on does not appear to have been stated. It was shown to have been a part of the sheriff’s return of levy, and treating it as such there was no reversible error in refusing to exclude it.—Mayer v. Clark, 40 Ala. 259. It was admissible on the subject of values in connection with and as part of the testimony of the witness Brown which was to effect that he helped to make the inventory and that the values of goods were as stated thereon. Apart from such testimony and as independent evidence, the statement of values contained in the inventory being but the ex parte statement of the officer would have been inadmissible.—Roswald v. Hobbie, 85 Ala. 73. Brown having shown himself acquainted with the character and value of part of the stock, was competent to testify to the value of that part. This he did in effect in stating the value of all the goods to be as shown by the detailed statement in the inventory, and the fact that he lacked knowledge of some articles inventoried did not render his testimony subject to the objection which was made to it as a whole, and Avhich was upon the ground that the testimony, and not the witness, was incompetent. The testimony of the witness Pierce went to no material fact in dispute. The rejection of the offer to show the accuracy of his memory was without injury. The object of the statute requiring the jury on the trial of a claim suit to assess the value of the articles separately is to enable the claimant to return the property in part if he cannot in whole, and so relieve himself and the sureties on the forthcoming bond from liability thereon pro tanto. The claimant having sold all the goods before the trial presumably had disabled himself to return any part of them, and was not prejudiced by the fact that the articles were not separately assessed. The judgment will be affirmed.