Opinion
7 Div. 178.
May 25, 1933. Rehearing Denied June 22, 1933.
Appeal from Circuit Court, Etowah County; R. B. Carr, Judge.
David C. Byrd, of Gadsden, for appellants.
The judgment entry assessing value of the property was made after expiration of the term at which the case was tried and after appeal had been perfected, and was therefore unauthorized and void. Code 1923, §§ 6670, 10377; Gabbert v. Gabbert, 217 Ala. 599, 117 So. 214; Hynes v. Underwood, 191 Ala. 90, 67 So. 994; Chamblee v. Cole, 128 Ala. 649, 30 So. 630; State v. Smith, 215 Ala. 449, 111 So. 28; Chitwood v. White, 18 Ala. App. 331, 92 So. 84. The burden was upon plaintiff to establish a prima facie case. Plaintiff failed to discharge this burden, and it was error to render judgment for plaintiff. Code 1923, § 10376; Keyser v. Maas, 111 Ala. 390, 21 So. 346; Cochran v. Garrard, 150 Ala. 579, 43 So. 721. Claimants showed superior right and title to the property by valid conveyances. Savage v. Milum, 170 Ala. 115, 54 So. 180; McCrory v. McDonald, 192 Ala. 312, 68 So. 306; Merchants Bank v. Parrish, 214 Ala. 96, 106 So. 504; Morrow v. Campbell, 118 Ala. 330, 24 So. 852.
McCord McCord, of Gadsden, for appellee.
The ruling of the trial court on the motion to expunge was made after the appeal. Nothing as to this is presented for review. The court was justified in finding the conveyances by the debtor to his wife and son to be fraudulent. Giddy v. Shotts, 214 Ala. 627, 108 So. 573; Murphy v. Pipkin, 191 Ala. 111, 67 So. 675; McTeers v. Perkins, 106 Ala. 411, 17 So. 547; Beall v. Lehman Durr, 110 Ala. 446, 18 So. 230; Russell v. Davis, 133 Ala. 647, 31 So. 514, 91 Am. St. Rep. 56; Schloss v. McGuire, 102 Ala. 626, 15 So. 275.
The motion to expunge the judgment entry from the minutes of the court was filed after the judgment was entered and appeal taken therefrom; therefore, the ruling on the motion is not reviewable on this appeal, and the assignment predicated thereon will be disregarded. Ex parte Gay (Sovereign Camp, W. O. W., v. Gay), 213 Ala. 5, 104 So. 898.
The trial was by the court sitting without a jury, and while no formal pleadings appear in the record, it appears the issue tried involved the bona fides of the transfers made by the defendant in execution to his wife and son. The plaintiff made a prima facie case when he offered evidence showing that the property levied on was in the possession and control of the defendant. Jones v. Franklin, 81 Ala. 161, 1 So. 199; Jackson v. Bain, 74 Ala. 328; Vaught v. Oehmig Wiehl, 95 Ala. 306, 11 So. 416; Eldridge v. Grice, 132 Ala. 667, 32 So. 683.
If it be conceded that the question put to the witness Ira C. Ballard, Jr., on cross-examination — the predicate for assignment of error 2 — was objectionable as calling for the conclusion of the witness, this ground of objection was not assigned, and those assigned were not well taken and were properly overruled. Steiner Bros. Co. v. Tranum, 98 Ala. 315, 13 So. 365; McDaniel v. State, 97 Ala. 14, 12 So. 241. Moreover, the witness gave a negative answer and no injury resulted to the appellants.
On the issue of the bona fides of the transfers, it was permissible for the plaintiff to show that the transfers involved all the personal property owned by the defendant in execution, and that his real estate was covered by mortgages. It was also permissible for the plaintiff to show that the debt merged into the judgment on which the execution was issued, antedated the transfers, and the time of filing the suit.
We cannot affirm that the judgment and conclusion of the court are not supported by the evidence.
There is another reason, however, why the judgment must be affirmed. The trial involved the claims of two separate claimants to separate and distinct parts of the property levied on. There is a joint appeal and a joint assignment of errors, and the case was submitted without leave to sever in the assignment of errors. Roberts v. Kemp, 218 Ala. 350, 118 So. 656; Futvoye v. Chuites, 224 Ala. 458, 140 So. 432; Stacey v. Taliaferro, 224 Ala. 488, 140 So. 748.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.