McElhaney v. Gilleland , 30 Ala. 183 ( 1857 )

"WALKER, J.

If tbe plea found in tbe record be tbe plea of only one defendant, as tbe appellant’s counsel insists, because tbe word defendant is used in the singular, of which defendant is it tbe plea ? It would be impossible to answer this question; and to bold that it is tbe plea of only one defendant, and yet be unable to determine of which defendant it is tbe plea, is to make nonsense of tbe record. Tbe attorneys subscribe tbe plea “for defendants,” — in tbe plural; and then tbe court says, in its minutes, that “as to tbe other defendants,” besides tbe one as to whom there was a discontinuance, came a jury, who tried tbe issue joined. It is clear, from this sentence, that tbe issue was tried as one between tbe plaintiff and all tbe defendants except tbe one left out by tbe discontinuance.

This case is distinguishable from Catlin, Peeples & Co. v. Gilder’s Executors, 8 Ala. 586, and Puckett v. Pope, ib. 552, in two particulars: this judgment entry affirmatively shows, by its recitals, that tbe appellants were parties to tbe issue; and tbe plea at least does not show that they were not parties to tbe issue. We cannot suppose that tbe defendants were not parties to tbe plea, without imputing to tbe court tbe absurdity of submitting an issue to tbe jury as between the plaintiffs and parties who bad not pleaded. We do not say that tbe plea would have been held good, if objection bad been made in tbe court below; but we think, that under tbe rule as to reasonable intendments, which this court has adopted in support of judgments brought before it for revision, we must bold that tbe appellants were parties to tbe plea.

Having appeared, and pleaded to tbe statement in tbe circuit court, the appellants cannot now object to any irregularity in the appeal, the notice, or the process commencing tbe suit. — Bancroft v. Stanton, 7 Ala. 351; Etheridge v. Fuller, 6 Ala. 58; Hobson v. Emanuel, 8 Porter, 442; Wheeler v. Bullock, 6 Porter, 352; Lucy v. Beck, 5 Porter, 167; Gilbert v. Lane, 3 Porter, 267; Williams v. Lewis, 2 Stewart, 41; Brown v. Simpson, 3 Stewart, 331.

No objection was made in the court below, on account of the discontinuance as to Sexana; but the parties went on, and tried the issue joined. If the discontinuance was improper, it is now too late to make the objection. Walker v. Cuthbert, 10 Ala. 213; Shorter v. Urquhart, 28 Ala. 360.

The statement is as unartificial as it well could be made ; and doubtless, if a demurrer to it had been interposed, it must have been sustained. But we are of the opinion, that it sets forth such a cause of action as will prevent a reversal after verdict and judgment. We do not mean to assert, that the sureties of the constable would have been liable for a trespass committed by him, by levying on property exempt from execution, if the measure of their liability were not controlled by statute. — See Governor v. Hancock & Harris, 2 Ala. 728; People v. Schuyler, 2 Barbour, 166; The State v. Brown, 11 Iredell, 141; Commonwealth v. Cole, 7 B. Monroe, 250; 6 Watts & Serg. 513; 6 Wendell, 45; 4 Bibb, 219; 2 Leigh, 630.

Section 118 of the Code prescribes, as the condition of a constable’s bond, the faithful discharge of the duties of his offi.ce. By the 3d clause of section 130, every official bond, executed under the Code, is made obligatory on the principal and his sureties, “for the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office, as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.” In Simmons v. Hancock & Harris, supra, this court had decided, that the sxxreties of a sheriff would not be responsible for his malfeasance, unless the malfeasance included a misfeasance also ; “as, for instance, if the sheriff should wantonly destroy property levied on by him, this would be a tortious act; but there would also be a tortious omission of his duty, which is to keep the property safely.” Now this decision left no remedy against the sureties of an officer, in those cases where he had committed a wrong, under the assumed and pretended authority of his office, by virtue of process in his hands. To meet and provide for such cases was, partly at least, the object of that clause of the Code under consideration. The object of the Code is, to extend the remedy beyond those cases in which a wrong is done in the discharge of the legitimate duties of the office, to those in. which a wrong is done under color of office. Color of office is defined by Bouvier, in his Law Dictionary, to be where a wrong is committed “by an officer, under the pretended authority of his office.” The phrase, “color of office,” occurs in the criminal law, treating of prosecutions of officers for extortion. “Extortion, in its strict, legal acceptation, signifies the taking of money by any officer, by color of his office, either where none at all is due, or not so much is due, or where it is not yet due.” 2 Chitty’s Criminal Law, 298, note w ; 4 Bla. Com. 142.. In "Webster’s Dictionary, color is defined to be, guise, appearance, pretense. . A constable must be said to have acted under the color of office, when, by the assumed but unreal authority of his office, he levies process in his hands on property exempt by law from execution, and retains and sells it after the affidavit required by law has been made.

The statement of the cause of action says, in effect, that the appellants were the sureties of their co-defendant, on his official bond as constable; that the constable wrongfully took and sold the goods and chattels mentioned; that he took them as constable, under color of office; that the plaintiff, after the taking, made affidavit according to law, that he was the head of a family, residing in this State, and that said property was exempt from levy and sale by any process whatever; which affidavit was exhibited to the officer, but he nevertheless refused to deliver up said property, but sold the same. This statement, we decide, sets forth what will be deemed, after verdict and judgment without objection below, a substantial cause of action against the appellants. — Code, § 2466. Under the rule as to favorable intendments, which ought to be applied for the maintenance of a declaration not objected to below, every requisite necessary to make the defendants liable under section 2466 ofthe Code is found in this declaration. It does not state that the affidavit was made within five days; but it does state that it was made “according to law;” and we will intend, after verdict and judgment, that it means thereby within the time prescribed by law. — Castle v. McMath, 1 Ala. 326; Morrison v. Morrison, 3 Stewart, 444; Bumpass v. Webb, 3 Ala. 109; Hargrove v. Smith & Co., 1 Ala. 80; Lucas v. Hitchcock, 2 Ala. 287; Doughty v. Colquitt, 2 Ala. 337; Blount v. McNeill, 29 Ala. 473.

No objection can be here taken for the first time, that there was no replication to the defendant’s plea, or issue taken upon it. — Abercrombie v. Mosely, 9 Porter, 145; Malone v. Donally, Minor, 12; Dade v. Buchanan, ib. 415; Hubert v. Collier, 6 Ala. 269; Evans v. St. John, 9 Porter, 186. Nor will this court reverse, because the defendants pleaded not guilty to an action on an official bond, and the verdict was rendered on it. — Stone v. Gover, 1 Ala. 287. Neither will it reverse, because the verdict is for damages. — Sanford & Carter v. Richardson & O’Neal, 1 Ala. 182 ; Carroll v. Meeks, 3 Porter, 226; Malone v. Hathaway, 3 Stewart, 29; Briggs v. Greenlee, Minor, 123; Fuqua v. Stone, 1 Stewart, 438.

The judgment ofthe court below is affirmed.