Opinion
8 Div. 504.
May 18, 1933.
Lynne Lynne, of Decatur, for petitioner.
The statute, as amended, giving the right of a married woman to appeal without giving security for cost includes any judgment or decree subjecting to sale any property or for payment of money or doing or performing any act. The judgment in this case could not have been for the property alone; that judgment was for the property sued for or its alternate value, and was a judgment for money within the purview of the statute. Code 1923, § 6138; Scott v. Shepherd, 215 Ala. 671, 112 So. 137; Ex parte Jones, 217 Ala. 208, 115 So. 301; Jernigan v. Willoughby, 159 Ala. 650, 48 So. 812; Wittick's Adm'r v. Keiffer, 31 Ala. 199; 5 Words and Phrases, First Series, 4566; Slaughter v. Webster, 194 Ala. 642, 70 So. 128.
R. L. Almon, of Moulton, for respondent.
Petitioner, being a claimant or substituted defendant in detinue, does not fall within the exceptional privilege afforded married women by section 6138 of the Code. Guy v. Lee, 80 Ala. 346; Ex parte Brown, 213 Ala. 7, 105 So. 170; Scott v. Shepherd, 215 Ala. 671, 112 So. 137; Hildebrand v. First Nat. Bank, 221 Ala. 216, 128 So. 219; Nichols v. Snead, 224 Ala. 324, 140 So. 375; Ex parte Johns, 209 Ala. 638, 96 So. 888; Cobb v. Reed Phosphate Co., 220 Ala. 55, 124 So. 94. If this case be regarded as detinue, the judgment is not for money, as the measure of recovery in detinue is the recovery of the specific property. Louisville N. R. Co. v. James, 204 Ala. 604, 86 So. 906. If regarded as a claim suit, the judgment is not for money but for the property claimed; the title to the property, being the issue. Code 1923, § 10376.
On certiorari, petitioner stresses the fact that the petition for mandamus discloses this was a claim suit in detinue under Code, § 7403, not a claim suit for trial of right of property levied upon under execution, section. 10375, Code.
Judgment went for the plaintiff and against the claimant for the property sued for or its alternative value, assessed as per statute. Slaughter v. Webster, 194 Ala. 642, 70 So. 128.
It is here insisted the judgment was, therefore, one "for the payment of money" within the meaning of Code, § 6138. This extension of the married woman's appeal statute was subsequent to Guy v. Lee, 80 Ala. 346. Still, it is primarily a suit for the recovery of property, as there declared.
A judgment against the claimant failing in the suit for the alternate value was all the while provided for in trials of the right of property, and this procedure is adopted by reference in the statute providing for claim suits in detinue.
Again, the general detinue statute has all along provided for judgment for the property or its alternate value against the losing party, if the property was then in his possession. Code, § 7392.
Section 6138, exempting married women from giving security for costs of appeal, made to operate as a supersedeas without bond, has uniformly been construed as limited to the cases expressly provided therein; and construed in connection with related statutes touching supersedeas bonds on appeal.
Thus, judgments for "the payment of money" are superseded on appeal by executing bond under Code, § 6133; while judgments for the "recovery of property, real or personal," are superseded under Code, § 6134; and judgments on trial of right of property under special statute, Code, § 6136. Ex parte Brown, 213 Ala. 7, 105 So. 170; Scott v. Shepherd, Clerk of Circuit Court, 215 Ala. 671, 112 So. 137; Hildebrand v. First Nat. Bank of Fairfield, 221 Ala. 216, 128 So. 219.
Since the disabilities of coverture giving birth to the original statute have been removed, and a married woman has full power to contract, own, and dispose of property, conduct business as a feme sole, the reason for a strict construction of this statute is quite as strong as heretofore.
The judgment appealed from is properly treated as one for the recovery of personal property, not one for the payment of money, within the meaning of section 6138.
Certiorari denied, and judgment of the Court of Appeals affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.