Garrett v. Davis , 216 Ala. 74 ( 1927 )

The plaintiff in judgment in a detinue suit is of course not bound to accept the alternate value of the property recovered, if tendered by the defendant or the sheriff, but may always insist upon having the specific property so long as it is in existence, and may insist upon the issuance of a writ of attachment, to be followed by alias writs, if necessary, commanding its seizure and delivery to plaintiff. Ex parte Vaughan, 168 Ala. 187, 53 So. 270; Carter v. Alford, 64 Ala. 236,239. This assumes that an unqualified judgment has been rendered for the plaintiff, and remains unsatisfied.

The trouble with appellant's motion in the inferior court, and her petition to the circuit court judges is that she showed no such judgment. It was competent for the plaintiff to accept in open court the defendant's offer to pay the alternate value of the property, as assessed, and the execution of that agreement, as shown by the recitals of the judgment, was in legal effect a judgment by consent discharging the property from the operation of the judgment. Such a judgment must be "regarded as in the nature of a contract or binding obligation between the parties thereto, which neither, in the absence of fraud or mistake, has the right to set aside or disregard, and which, as against each, is a waiver of errors and irregularities. Freeman on Judgments, § 330." Cowley v. Farrow, 193 Ala. 381, 384, 69 So. 114.

So long, therefore, as this judgment stands, the rendering court is without authority to issue a writ of attachment or distringas to seize the property thus discharged, or coerce its surrender; and, a fortiori, the circuit court is without authority to direct the issuance of such a writ.

It is true the petitioning plaintiff denies that she agreed to that settlement. But the judgment in question cannot be impeached collaterally, but only by a proper proceeding, with proper allegation and proof.

The demurrer to the petition pointed out its insufficiencies and was properly sustained.

Affirmed.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.