Sons v. Yielding Bros. & Co.

ANDERSON, J. This was a trial of the right of property, and it was incumbent upon the plaintiff, in order to make out a prima facie case, to prove the levy of valid process. The bill of exceptions purports to contain all of the evidence, and there is nothing to show that the attachment writ and levy were introduced in evidence. This being true, the claimant was entitled to the general charge, the refusal of which was error.—Jackson v. Bain, 74 Ala. 328; Cochran v. Garrard, 150 Ala. 579, 43 South. 721. [350] Kronenberg did not have to produce the bill of lading in order to show a sale or delivery of the goods testified to having been sold; but the trial court will not be put in error for sustaining the motion to exclude his evidence, as the articles sold were not identified as part of the goods involved in this suit. If Kronenberg sold the claimants the goods involved, or some of them, then what he sold could not be subjected to the attachment against the defendant; but, unless the goods sold by Kronenberg formed a part of the goods involved in this suit, it was immaterial how many goods this witness sold the claimants. Goldstein’s testimony should not have been excluded upon the ground that he did not sell the goods himself, as he stated that he remembered the transaction and knew that it occurred. Whether he sold the goods in person or not, if he saw them sold, and knew that they were sold, he could testify to said sale. But the action of the court can be sustained for excluding this evidence, for the reason discussed in dealing with evidence of Kronenberg. There was no question of coverture involved, and it was immaterial whether the plaintiff thought S. L. Weinstein was a man or a woman. The claim of exemption was contemporaneous with the sale and failure of the defendant, and there was no error in allowing it in evidence. Moreover, if it contained the goods involved, it was favorable to- the claimants, for the plaintiff cannot complain if she gave away property that had been legally exempted to her. The judgment of the city court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Simpson and Sayre, JJ., concur.