Staunton v. Simmons , 20 Ala. 243 ( 1852 )

DAEG-AN, C. J.

We cannot perceive what influence the judgment recovered in the Circuit Court against the constable, could have upon the motion which was made by the plaintiff, to have the sale set aside. We think it was wholly an immaterial matter, and the motion should have been heard and determined in the same manner that it would have been, had no such recovery been had. It is,- however, argued that this recovery' is a bar to any other suit that may be brought to recover the horse or its value. It will be, however, time enough to decide that question, when the plaintiff brings another action. But if that recovery was pleaded in bar to an action of trover, not brought against the same party against whom the judgment in trespass was recovered, it is probable that the recovery alone, without a satisfaction, would form no bar, (see Spivy v. Morris, 18 Ala. 254; Blann v. Crocheron, decided at the present term). It is not, however, necessary to decide that question before it is raised, and it cannot be raised, in our opinion, upon this motion. The court below should have decided the motion to set aside the sale upon its own merits, without regard to the judgment that had been recovered against the constable. The matter alleged by way of plea formed no bar to the motion; and the judgment must be reversed, and the cause remanded.