BANK OF COMMERCE TRUST CO. v. J. C. PENNOYER CO

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Docket Number

6 Div. 161.

Attorney(S)

K. V. Fite, of Hamilton, for appellant. Recording of certificate of judgment constituted a lien on all property of defendant, and was notice of such lien. Code 1923, §§ 7874, 7875. Evidence of the levy and possession of the property by defendant at the time made out a prima facie case in favor of plaintiff. The burden then shifted to claimant to show title. Ross v. Lawson, 105 Ala. 351, 16 So. 890. If the staves manufactured from timber cut from different tracts of land, other than any timber conveyed by claimant's deeds, were mixed and commingled with staves so cut from other timber, all such staves were liable to satisfaction of the judgment in this case, on proof that staves cut from other lands could not be differentiated from staves cut from timber claimed by claimant. J. Allen Smith Co. v. Montgomery, 209 Ala. 100, 95 So. 290. E. L. Westbrooke, of Jonesboro, Ark., and Ernest B. Fite, of Hamilton, for appellee. Defendant, having failed to move a continuance and proceeded voluntarily to trial, was in no position to ask for a new trial on the ground of surprise. Simpson v. Golden, 114 Ala. 336, 21 So. 990; Hoskins v. Hight, 95 Ala. 284, 11 So. 253; Southern Dredging Co. v. Christie, 196 Ala. 421, 72 So. 124. The money was advanced by claimant, for the production of the staves, including the cost of stumpage, making, dressing, and hauling, and the title to the finished staves vested in claimant. Lucas E. Moore Stave Co. v. Kennedy, 212 Ala. 193, 101 So. 894.

Judges

BOULDIN, J. (after stating the facts as above).

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BANK OF COMMERCE TRUST CO. v. J. C. PENNOYER CO.

BOULDIN, J. (after stating the facts as above).

Plaintiff "having failed to move a continuance or postponement, and proceeded voluntarily with the trial, he was in no position, after the case was decided against him, to ask for a new trial on the ground of such alleged surprise. Having speculated upon the chances of a favorable result upon the evidence then before the court, and lost, he cannot now demand another trial that he may introduce other evidence not available to him on the first trial." This statement of the rule, frequently approved, need not be enlarged upon. Simpson v. Golden, 114 Ala. 336, 21 So. 990; Hoskins v. Hight, 95 Ala. 284, 11 So. 253; Southern Dredging Co. v. Christie, 196 Ala. 421, 72 So. 124.

The denial of the motion for new trial in this case may well be sustained upon this ground.

Looking to the merits of the case, the evidence supported the view that such timber and bolts as were purchased by Kennedy and commingled with those cut from the claimant's lands, were purchased for claimant with claimant's funds; that all were manufactured and stacked together as one business, the title to the whole being in claimant from the beginning.

If, technically speaking, the legal title to this added stock was ever in Kennedy, and the plaintiff, a judgment creditor, was without notice of claimant's equity, the subjection of the whole as the property of the judgment debtor under the doctrine of confusion of goods, would turn on claimant's participation in such manner as subjected claimant to the law of fraudulent conveyances in dealing with the debtor's property. 12 C. J. 496.

Further discussion is deemed unnecessary.

Affirmed.

ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.

BANK OF COMMERCE TRUST CO. v. J. C. PENNOYER CO.

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