Young v. Davis , 30 Ala. 213 ( 1857 )

WALKER, J.

The- fourth plea does not deny the plaintiff’s title. It avers that, at the time and place when and where the property was taken into possession, it was liable to be levied on as the property of the defendant in attachment. A traverse of the plaintiff’s right of action is not necessarily involved in the assertion that the property was liable to levy. The property may . have been liable to levy, and yet the plaintiff’s title may have been good, except as to creditors and purchasers without notice, asserting a fraud in a conveyance by the defendant in attachment to the plaintiff. The plea is therefore not good, unless it alleges the facts which constitute a justification of him as sheriff. Under our decisions, the plea of justification under mesne process is not made out, even against another person than the defendant in attachment, unless a return of the process by virtue of which the act was done is averred. — Kirksey v. Dubose, 19 Ala. 43; McAden v. Gibson, 5 Ala. 348. The levy was made by virtue of an attachment, and the sale by virtue of an order of sale issued by a justice of the peace. The only averment of any return by the defendant is in the following words : “Of which proceedings under said order of sale, he, the said defendant, made duo return to said county court of Tuskaloosa county, according to the mandate thereof.” This is not an allegation, nor equivalent to an allegation of the return of the attachment or order of sale. Whether an averment of the return of the attachment was necessary, it is not required that we should decide, because it does not appear that either the attachment or order of sale was returned. For the reasons which we have stated above, the demurrer ought to have been sustained to the fourth plea.

It is proper that we should go on and consider another objection to the plea. It was urged by the appellant’s counsel, that the order of sale, as described in the fourth plea, was void, because the justice of the peace who issued the order of sale, bad no authority to do it. The plea shows, that an attachment was issued by a justice of Tus-kaloosa county; that it was placed in the hands of the sheriff of Pickens county, and by him levied; and that after the levy, the same justice of the peace who issued the attachment, issued the order of sale, upon a sworn representation that the property attached was likely to waste or be destroyed by keeping. Upon these facts, alleged in the plea, the question arises, can a justice of the peace of Tuskaloosa county issue an order to the sheriff of Pickens county, to sell property levied on by him by virtue of an attachment issued by the same justice of the peace, returnable to the county court of Tuskaloosa county ? The act confers the authority to issue the order of sale on “any judge or justice of the peace.” — Clay’s Digest, 56, § 8. The explicit language of this statute permits no escape from the conclusion, that some justice had the power to issue the order. It must be either a justice of Tuskaloosa county, to the court of which the order is required to be returned, or of Pickens county, where the order is to be executed, who had the authority in this case. The authority of a justice to issue an attachment is strictly analogous to the authority to issue an order of sale. This court held, in Caldwell v. Meador, 4 Ala. 755, and afterwards in two other cases, that the authority to issue an attachment pertains alone to the justice of the county in which the attachment is returnable. Following the analogy of those cases, we decide that the order of sale, described in the fourth plea, was properly issued by the justice of the county of Tuskaloosa, to the county court of which it was by statute returnable. — See Clay’s Digest, 56, § 8; Brooks & Lucas v. Godwin, 8 Ala. 296; Dew v. Bank of the State, 9 Ala. 823.

The second plea set up the statute of limitations of six years; and the plaintiff replied, that for the same cause of action, he sued in trespass within the six years, and recovered judgment, which was reversed in the supreme court, and that this suit was brought within twelve months afterwards. It is contended that the statute permits the renewal within twelve months after reversal of the action only in the same form, and that the plaintiff could sue in no other form of action than trespass, that being the one originally adopted, so as to avoid the statute. The act of 12th February, 1850, (Pamphlet Acts of 1849-50, p. 79,) provides, that after a reversal of a judgment recovered in one suit, if the plaintiff “shall renew the said suit” within one year from the reversal, “the plea of the statute of limitations shall not be available in bar, so long as the plaintiff’s right to a recovery is asserted by recommencing such suit.” We understand the legislature to have intended by this statute to give a right, freed from the bar of the statute of limitations, to bring another suit for the same cause of action, and not to restrict him to the same form of action. The legislature clearly does not mean, .by permitting the party to recommence the same suit, to confine him to the same form of action. Such a construction of the statute would exclude from its beneficial operation the class of eases where the plaintiff’s judgment had been reversed on account of a mistake of the form of action, while there is no other class of cases to which it can be more appropriately applied.

The defendant below, being the appellee in this court, .seeks to avoid a reversal of the judgment obtained by him, upon the ground that the declaration is defective, and that the demurrer to the plea ought to have been visited upon the declaration. It appears from the record, that no such question was raised in the court below, and the defendant will not be permitted to raise it for the first time in this court. The practice upon this point is settled upon reasoning altogether satisfactory. — Adams and Wife v. Adams, 26 Ala. 272; Kent v. Long, 8 Ala. 44. If the objection urged against the declaration be a good one, it may be avoided by amendment, and will therefore not probably again arise. For that reason, it is not necessary for us to pass upon it.

The judgment of the court below is reversed, and the cause remanded.