Opinion
4 Div. 596.
March 2, 1950. Rehearing Denied April 20, 1950.
Appeal from the Court of Appeals, Harwood, J.
E. O. Baldwin, of Andalusia, for petitioner.
Ralph A. Clark, of Andalusia, opposed.
On Rehearing.
It is insisted on application for rehearing that in denying the petition for writ of certiorari filed in this case we have given approval to the action of the Court of Appeals in overruling two decisions of this court, namely, Clem v. Wise, 133 Ala. 403, 31 So. 986, and Merrill et al. v. Travis, 248 Ala. 42, 26 So.2d 258, in so far as they indicate that a judgment in detinue against a defendant and the sureties on his replevy bond is irregular.
But we do not think the opinion of the Court of Appeals is in any wise in conflict with the holdings in the cases above referred to. The judgment of the trial court is set out in the opinion of the Court of Appeals and it does not appear therefrom that there was a judgment against the sureties on the replevy bond. On the contrary, it affirmatively appears that it was against the defendant and the sureties on his appeal bond, as was held proper in the case of Deas v. Garrett and Mason, 16 Ala. App. 572, 80 So. 146. The Court of Appeals in affirming the judgment of the trial court found it necessary to correct the judgment in the manner indicated in its opinion. However, we do not think that the Court of Appeals corrected the judgment so as to make it one against the sureties on the replevy bond.
Application for rehearing overruled.
BROWN, FOSTER, SIMPSON, and STAKELY, JJ., concur.